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Avitel Post.Studioz Limited Vs. Hsbc Pi Holdings (Mauritius) Limited | is contrary to or excluded by that law or rules will not be applicable.23. In Harmony Innovation Shipping Limited v. Gupta Coal India Limited & Anr, (supra) the litigation was in respect of foreign seated international commercial arbitration. The issue arose was whether judgment referred in Bharat Aluminium Company v. Kaiser Aluminum Technical Services Inc (supra), would apply. Their Lordships in unequivocal terms opined that since there was ample material indicating the intention of the parties through various phrases used in the arbitration agreement, with regard to seat of arbitration, who should be arbitrators and the contract to be governed and construed according to which law, therefore, opined that the seat of arbitration will be at London, and further opined that the contract be governed and construed according to the English law. They further opined that the clauses in the arbitration agreement should be looked into to understand whether a particular clause in question is substantial arbitration clause or a curial/procedural one. Ultimately, opined that law laid down in Bharat Aluminium Company v. Kaiser Aluminum Technical Services Inc (supra) is not applicable to agreements entered into prior to 6th September 2012 (date of decision of said case), and opined that the law rendered in Bhatia International v. Bulk Trading S.A (supra) is applicable. They further opined that the clear unambiguous terms/clauses stipulated in the arbitration agreement clearly points out juridical seat being London and ouster of jurisdiction of Indian Courts.24. So far as Reliance Industries Ltd & Anr v. Union of India (supra), in this case, the Apex Court in detail referred to the law which would be applicable to the filing of the award, enforcement of award, and also the law which provides for setting aside the agreement to arbitrate and the performance of parties.25. In Reliance Infrastructure Ltd. Mumbai v. Roadway Solution (I) Pvt. Ltd, Pune (supra), it was held that the parties to the agreement having agreed to a place of arbitration for all disputes arising out of the said agreement shall be subject to jurisdiction of Mumbai Court. Since no challenge was made to said terms and clauses of agreement, therefore, such terms and clauses are binding on the parties.26. Going through the above decisions, terms of two agreements SSA and SHA, one has to see what happens in the present case with reference to the terms of two agreements in the light of above judgments.27. So far as factual situation in the earlier proceedings, learned Single Judge as well as Division Bench in the proceedings filed under Section 9 of Arbitration Act opined that in the light of jurisdictional award and interim award being made by Arbitral Tribunal between the same parties arising out of the same agreement in the arbitration proceedings at Singapore determines the jurisdiction of the Arbitral Tribunal, and in the partial award dated 17th December 2012, it is declared that the parties are governed by Singapore law in terms of arbitration agreement.28. In the present case, after detail discussion of the judgment of the Single Judge and Division Bench in the earlier proceedings, learned Single Judge was justified in opining that there is finality so far as interpretation of some clauses of SSA and SHA. On perusal of the terms of agreement, clause 16.1.2 clearly mentions that the seat of arbitration shall be Singapore. 16.1.6 - First Part clearly indicate that parties have waived their right to apply to any Court of law for determination on any preliminary point of law/review any question of law and merits only in so far as such waiver. They further agree that such waiver shall not be deemed to have included waiver of right to challenge any award on the ground that the Tribunal lacks substantive jurisdiction or the grounds of serious irregularity affecting the Tribunal, the proceedings or the award to the extend allowed by the law of the seat of arbitration. In other words, since the seat of arbitration was Singapore, the parties reserve right to challenge award on the ground that the Tribunal lacks substantive jurisdiction or there exists serious irregularity affecting the proceedings, etc alone.29. 16.4 clearly indicate application of Arbitration Act of 1996. It clearly says except for the purpose of Section 9, provisions of Part 1 of Indian Arbitration and Conciliation Act, 1996 shall not apply to the terms of the agreement. From reading of the above terms, it is crystal clear that seat of arbitration is at Singapore and the parties have waived the right to apply to any Court of law with regard to preliminary point of law as indicated at 16.1.6 except right to challenge award on the ground that the Tribunal lacks jurisdiction, etc. Definitely, this does not mean that the provisions of Part-I of Arbitration Act shall apply to the terms of the agreement.30. So far as SHA is concerned, the agreement shall be governed by the laws of Republic of India without regard to applicable conflict of laws principles. Clause 19.1 refers to arbitration at SIAC in accordance with the SIAC administered arbitration Rules that were in force. Again, clause 19.4 provides that except invoking provisions of section 9 of Arbitration and Conciliation Act, 1996, the entire Part-I of the 1996 Act is not applicable. Therefore, reading both the agreements with reference to the above clauses, it is crystal clear that 16.4 of SSA can be considered as an amendment to 16.1.1, and 16.1.6 carves out exception to an exception. Reading of clause 16.4 along with clause 19 of SSA and 19.4 of SHA, there is no scope to understand the terms agreed between the parties otherwise. In other words, except invoking provisions of Section 9 of Arbitration Act, the entire Part 1 of Arbitration Act of 1996 (Indian Law) is expressly excluded, thereby any challenge made under Section 34 cannot be entertained in terms of law applicable in India. Parties have expressly excluded application of Part 1 of 1996 Act, except provisions of Section 9 of Part 1 of Arbitration Act, 1996. | 0[ds]20. National Thermal Power Corporation Ltd. v. Singer Company (supra), is relied upon by appellants counsel by placing reliance on paras 237. It is contended that the normal practise would be the proper law of the arbitration agreement is generally the same as the proper law of the contract, and only in exceptional cases, it need not be so where the proper law of the contract is expressly chosen by the parties. According to him, a presumption would arise where there is no express choice of the law governing the contract as a whole or the arbitration agreement as such, and in such event, presumption may arise that the law of the country where the arbitration is agreed to be held is the proper law of the arbitration agreement. He also contends that so far as the validity of the arbitration agreement, including the effect and the interpretation are governed by its proper law, and such law will decide whether the arbitration clause is wide enough to cover the dispute between the parties. He also stresses upon the fact that parties have freedom to choose the law governing an International Commercial Arbitration Agreement, and further contends that where the proper law of the contract is expressly chosen by the parties, such law must, in the absence of an unmistakable intention to the contrary, govern the arbitration agreement which, though collateral or ancillary to the main contract, nevertheless a part of such contract. When proper law of the contract between the parties expressly stipulated to be the laws in force in a particular country and exclusive jurisdiction of the Courts at a particular place, the parties not having chosen expressly or by implication a law different from Indian Law in regard to the agreement contained in the arbitration clause, the proper law governing the arbitration clause is indeed the laws in India.21. Appellants counsel also banks upon Sumitomo Heavy Industries Ltd v. ONGC Ltd (supra). This was a case where parties to the contract/agreement belonging to different countries agreed upon that arbitrability of the dispute to be determined in terms of the law governing the arbitration agreement and the arbitration proceeding has to be conducted in accordance with the curial law and after rendering of the award, enforcement thereof has to be again in accordance with the law governing the arbitration agreement. Learned counsel for the appellants places reliance on paragraph no.10 of the said judgment to contend that the law governing the contract creating substantive rights of the parties in respect of which the dispute has arisen, the proper law of the arbitration agreement, the law governing the obligation of the parties to submit the disputes to arbitration and to honour the award must be the Curial law i.e. the law governing the conduct of the individual reference. He further emphasizes that where there is absence of express agreement, a strong presumption arises that parties intended the curial law to be the law of the seat of the arbitration. According to him, the enforcement process is entirely different since it is subsequent to and independent of the proceedings before the arbitrator since the need to challenge the award arises only if it is being enforced.22. Respondents counsel drew our attention to Bhatia International v. Bulk Trading S.A,(supra), paragraph no.32 wherein their Lordships opined that provisions of Part 1 would apply to all arbitrations and to all proceedings relating thereto when such arbitration is held in India. The provisions of Part 1 would compulsorily apply and parties are free to deviate only to extent permitted by the derogable provisions of Part I. In case, international arbitrations were held outside India, provisions of Part 1 would apply unless the parties by agreement, express or by implication, exclude all or any of its provisions. In such situation, depending on the terms of agreement, the laws/rules/regulations agreed upon by the parties would prevail. Therefore, it was opined that any provision from Part 1 which is contrary to or excluded by that law or rules will not be applicable.23. In Harmony Innovation Shipping Limited v. Gupta Coal India LimitedAnr, (supra) the litigation was in respect of foreign seated international commercial arbitration. The issue arose was whether judgment referred in Bharat Aluminium Company v. Kaiser Aluminum Technical Services Inc (supra), would apply. Their Lordships in unequivocal terms opined that since there was ample material indicating the intention of the parties through various phrases used in the arbitration agreement, with regard to seat of arbitration, who should be arbitrators and the contract to be governed and construed according to which law, therefore, opined that the seat of arbitration will be at London, and further opined that the contract be governed and construed according to the English law. They further opined that the clauses in the arbitration agreement should be looked into to understand whether a particular clause in question is substantial arbitration clause or a curial/procedural one. Ultimately, opined that law laid down in Bharat Aluminium Company v. Kaiser Aluminum Technical Services Inc (supra) is not applicable to agreements entered into prior to 6th September 2012 (date of decision of said case), and opined that the law rendered in Bhatia International v. Bulk Trading S.A (supra) is applicable. They further opined that the clear unambiguous terms/clauses stipulated in the arbitration agreement clearly points out juridical seat being London and ouster of jurisdiction of Indian Courts.24. So far as Reliance Industries LtdAnr v. Union of India (supra), in this case, the Apex Court in detail referred to the law which would be applicable to the filing of the award, enforcement of award, and also the law which provides for setting aside the agreement to arbitrate and the performance of parties.25. In Reliance Infrastructure Ltd. Mumbai v. Roadway Solution (I) Pvt. Ltd, Pune (supra), it was held that the parties to the agreement having agreed to a place of arbitration for all disputes arising out of the said agreement shall be subject to jurisdiction of Mumbai Court. Since no challenge was made to said terms and clauses of agreement, therefore, such terms and clauses are binding on the parties.26. Going through the above decisions, terms of two agreements SSA and SHA, one has to see what happens in the present case with reference to the terms of two agreements in the light of above judgments.27. So far as factual situation in the earlier proceedings, learned Single Judge as well as Division Bench in the proceedings filed under Section 9 of Arbitration Act opined that in the light of jurisdictional award and interim award being made by Arbitral Tribunal between the same parties arising out of the same agreement in the arbitration proceedings at Singapore determines the jurisdiction of the Arbitral Tribunal, and in the partial award dated 17th December 2012, it is declared that the parties are governed by Singapore law in terms of arbitration agreement.28. In the present case, after detail discussion of the judgment of the Single Judge and Division Bench in the earlier proceedings, learned Single Judge was justified in opining that there is finality so far as interpretation of some clauses of SSA and SHA. On perusal of the terms of agreement, clause 16.1.2 clearly mentions that the seat of arbitration shall be Singapore. 16.1.6First Part clearly indicate that parties have waived their right to apply to any Court of law for determination on any preliminary point of law/review any question of law and merits only in so far as such waiver. They further agree that such waiver shall not be deemed to have included waiver of right to challenge any award on the ground that the Tribunal lacks substantive jurisdiction or the grounds of serious irregularity affecting the Tribunal, the proceedings or the award to the extend allowed by the law of the seat of arbitration. In other words, since the seat of arbitration was Singapore, the parties reserve right to challenge award on the ground that the Tribunal lacks substantive jurisdiction or there exists serious irregularity affecting the proceedings, etc alone.29. 16.4 clearly indicate application of Arbitration Act of 1996. It clearly says except for the purpose of Section 9, provisions of Part 1 of Indian Arbitration and Conciliation Act, 1996 shall not apply to the terms of the agreement. From reading of the above terms, it is crystal clear that seat of arbitration is at Singapore and the parties have waived the right to apply to any Court of law with regard to preliminary point of law as indicated at 16.1.6 except right to challenge award on the ground that the Tribunal lacks jurisdiction, etc. Definitely, this does not mean that the provisions ofof Arbitration Act shall apply to the terms of the agreement.30. So far as SHA is concerned, the agreement shall be governed by the laws of Republic of India without regard to applicable conflict of laws principles. Clause 19.1 refers to arbitration at SIAC in accordance with the SIAC administered arbitration Rules that were in force. Again, clause 19.4 provides that except invoking provisions of section 9 of Arbitration and Conciliation Act, 1996, the entireof the 1996 Act is not applicable. Therefore, reading both the agreements with reference to the above clauses, it is crystal clear that 16.4 of SSA can be considered as an amendment to 16.1.1, and 16.1.6 carves out exception to an exception. Reading of clause 16.4 along with clause 19 of SSA and 19.4 of SHA, there is no scope to understand the terms agreed between the parties otherwise. In other words, except invoking provisions of Section 9 of Arbitration Act, the entire Part 1 of Arbitration Act of 1996 (Indian Law) is expressly excluded, thereby any challenge made under Section 34 cannot be entertained in terms of law applicable in India. Parties have expressly excluded application of Part 1 of 1996 Act, except provisions of Section 9 of Part 1 of Arbitration Act, 1996. | 0 | 5,001 | 1,803 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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is contrary to or excluded by that law or rules will not be applicable.23. In Harmony Innovation Shipping Limited v. Gupta Coal India Limited & Anr, (supra) the litigation was in respect of foreign seated international commercial arbitration. The issue arose was whether judgment referred in Bharat Aluminium Company v. Kaiser Aluminum Technical Services Inc (supra), would apply. Their Lordships in unequivocal terms opined that since there was ample material indicating the intention of the parties through various phrases used in the arbitration agreement, with regard to seat of arbitration, who should be arbitrators and the contract to be governed and construed according to which law, therefore, opined that the seat of arbitration will be at London, and further opined that the contract be governed and construed according to the English law. They further opined that the clauses in the arbitration agreement should be looked into to understand whether a particular clause in question is substantial arbitration clause or a curial/procedural one. Ultimately, opined that law laid down in Bharat Aluminium Company v. Kaiser Aluminum Technical Services Inc (supra) is not applicable to agreements entered into prior to 6th September 2012 (date of decision of said case), and opined that the law rendered in Bhatia International v. Bulk Trading S.A (supra) is applicable. They further opined that the clear unambiguous terms/clauses stipulated in the arbitration agreement clearly points out juridical seat being London and ouster of jurisdiction of Indian Courts.24. So far as Reliance Industries Ltd & Anr v. Union of India (supra), in this case, the Apex Court in detail referred to the law which would be applicable to the filing of the award, enforcement of award, and also the law which provides for setting aside the agreement to arbitrate and the performance of parties.25. In Reliance Infrastructure Ltd. Mumbai v. Roadway Solution (I) Pvt. Ltd, Pune (supra), it was held that the parties to the agreement having agreed to a place of arbitration for all disputes arising out of the said agreement shall be subject to jurisdiction of Mumbai Court. Since no challenge was made to said terms and clauses of agreement, therefore, such terms and clauses are binding on the parties.26. Going through the above decisions, terms of two agreements SSA and SHA, one has to see what happens in the present case with reference to the terms of two agreements in the light of above judgments.27. So far as factual situation in the earlier proceedings, learned Single Judge as well as Division Bench in the proceedings filed under Section 9 of Arbitration Act opined that in the light of jurisdictional award and interim award being made by Arbitral Tribunal between the same parties arising out of the same agreement in the arbitration proceedings at Singapore determines the jurisdiction of the Arbitral Tribunal, and in the partial award dated 17th December 2012, it is declared that the parties are governed by Singapore law in terms of arbitration agreement.28. In the present case, after detail discussion of the judgment of the Single Judge and Division Bench in the earlier proceedings, learned Single Judge was justified in opining that there is finality so far as interpretation of some clauses of SSA and SHA. On perusal of the terms of agreement, clause 16.1.2 clearly mentions that the seat of arbitration shall be Singapore. 16.1.6 - First Part clearly indicate that parties have waived their right to apply to any Court of law for determination on any preliminary point of law/review any question of law and merits only in so far as such waiver. They further agree that such waiver shall not be deemed to have included waiver of right to challenge any award on the ground that the Tribunal lacks substantive jurisdiction or the grounds of serious irregularity affecting the Tribunal, the proceedings or the award to the extend allowed by the law of the seat of arbitration. In other words, since the seat of arbitration was Singapore, the parties reserve right to challenge award on the ground that the Tribunal lacks substantive jurisdiction or there exists serious irregularity affecting the proceedings, etc alone.29. 16.4 clearly indicate application of Arbitration Act of 1996. It clearly says except for the purpose of Section 9, provisions of Part 1 of Indian Arbitration and Conciliation Act, 1996 shall not apply to the terms of the agreement. From reading of the above terms, it is crystal clear that seat of arbitration is at Singapore and the parties have waived the right to apply to any Court of law with regard to preliminary point of law as indicated at 16.1.6 except right to challenge award on the ground that the Tribunal lacks jurisdiction, etc. Definitely, this does not mean that the provisions of Part-I of Arbitration Act shall apply to the terms of the agreement.30. So far as SHA is concerned, the agreement shall be governed by the laws of Republic of India without regard to applicable conflict of laws principles. Clause 19.1 refers to arbitration at SIAC in accordance with the SIAC administered arbitration Rules that were in force. Again, clause 19.4 provides that except invoking provisions of section 9 of Arbitration and Conciliation Act, 1996, the entire Part-I of the 1996 Act is not applicable. Therefore, reading both the agreements with reference to the above clauses, it is crystal clear that 16.4 of SSA can be considered as an amendment to 16.1.1, and 16.1.6 carves out exception to an exception. Reading of clause 16.4 along with clause 19 of SSA and 19.4 of SHA, there is no scope to understand the terms agreed between the parties otherwise. In other words, except invoking provisions of Section 9 of Arbitration Act, the entire Part 1 of Arbitration Act of 1996 (Indian Law) is expressly excluded, thereby any challenge made under Section 34 cannot be entertained in terms of law applicable in India. Parties have expressly excluded application of Part 1 of 1996 Act, except provisions of Section 9 of Part 1 of Arbitration Act, 1996.
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it was opined that any provision from Part 1 which is contrary to or excluded by that law or rules will not be applicable.23. In Harmony Innovation Shipping Limited v. Gupta Coal India LimitedAnr, (supra) the litigation was in respect of foreign seated international commercial arbitration. The issue arose was whether judgment referred in Bharat Aluminium Company v. Kaiser Aluminum Technical Services Inc (supra), would apply. Their Lordships in unequivocal terms opined that since there was ample material indicating the intention of the parties through various phrases used in the arbitration agreement, with regard to seat of arbitration, who should be arbitrators and the contract to be governed and construed according to which law, therefore, opined that the seat of arbitration will be at London, and further opined that the contract be governed and construed according to the English law. They further opined that the clauses in the arbitration agreement should be looked into to understand whether a particular clause in question is substantial arbitration clause or a curial/procedural one. Ultimately, opined that law laid down in Bharat Aluminium Company v. Kaiser Aluminum Technical Services Inc (supra) is not applicable to agreements entered into prior to 6th September 2012 (date of decision of said case), and opined that the law rendered in Bhatia International v. Bulk Trading S.A (supra) is applicable. They further opined that the clear unambiguous terms/clauses stipulated in the arbitration agreement clearly points out juridical seat being London and ouster of jurisdiction of Indian Courts.24. So far as Reliance Industries LtdAnr v. Union of India (supra), in this case, the Apex Court in detail referred to the law which would be applicable to the filing of the award, enforcement of award, and also the law which provides for setting aside the agreement to arbitrate and the performance of parties.25. In Reliance Infrastructure Ltd. Mumbai v. Roadway Solution (I) Pvt. Ltd, Pune (supra), it was held that the parties to the agreement having agreed to a place of arbitration for all disputes arising out of the said agreement shall be subject to jurisdiction of Mumbai Court. Since no challenge was made to said terms and clauses of agreement, therefore, such terms and clauses are binding on the parties.26. Going through the above decisions, terms of two agreements SSA and SHA, one has to see what happens in the present case with reference to the terms of two agreements in the light of above judgments.27. So far as factual situation in the earlier proceedings, learned Single Judge as well as Division Bench in the proceedings filed under Section 9 of Arbitration Act opined that in the light of jurisdictional award and interim award being made by Arbitral Tribunal between the same parties arising out of the same agreement in the arbitration proceedings at Singapore determines the jurisdiction of the Arbitral Tribunal, and in the partial award dated 17th December 2012, it is declared that the parties are governed by Singapore law in terms of arbitration agreement.28. In the present case, after detail discussion of the judgment of the Single Judge and Division Bench in the earlier proceedings, learned Single Judge was justified in opining that there is finality so far as interpretation of some clauses of SSA and SHA. On perusal of the terms of agreement, clause 16.1.2 clearly mentions that the seat of arbitration shall be Singapore. 16.1.6First Part clearly indicate that parties have waived their right to apply to any Court of law for determination on any preliminary point of law/review any question of law and merits only in so far as such waiver. They further agree that such waiver shall not be deemed to have included waiver of right to challenge any award on the ground that the Tribunal lacks substantive jurisdiction or the grounds of serious irregularity affecting the Tribunal, the proceedings or the award to the extend allowed by the law of the seat of arbitration. In other words, since the seat of arbitration was Singapore, the parties reserve right to challenge award on the ground that the Tribunal lacks substantive jurisdiction or there exists serious irregularity affecting the proceedings, etc alone.29. 16.4 clearly indicate application of Arbitration Act of 1996. It clearly says except for the purpose of Section 9, provisions of Part 1 of Indian Arbitration and Conciliation Act, 1996 shall not apply to the terms of the agreement. From reading of the above terms, it is crystal clear that seat of arbitration is at Singapore and the parties have waived the right to apply to any Court of law with regard to preliminary point of law as indicated at 16.1.6 except right to challenge award on the ground that the Tribunal lacks jurisdiction, etc. Definitely, this does not mean that the provisions ofof Arbitration Act shall apply to the terms of the agreement.30. So far as SHA is concerned, the agreement shall be governed by the laws of Republic of India without regard to applicable conflict of laws principles. Clause 19.1 refers to arbitration at SIAC in accordance with the SIAC administered arbitration Rules that were in force. Again, clause 19.4 provides that except invoking provisions of section 9 of Arbitration and Conciliation Act, 1996, the entireof the 1996 Act is not applicable. Therefore, reading both the agreements with reference to the above clauses, it is crystal clear that 16.4 of SSA can be considered as an amendment to 16.1.1, and 16.1.6 carves out exception to an exception. Reading of clause 16.4 along with clause 19 of SSA and 19.4 of SHA, there is no scope to understand the terms agreed between the parties otherwise. In other words, except invoking provisions of Section 9 of Arbitration Act, the entire Part 1 of Arbitration Act of 1996 (Indian Law) is expressly excluded, thereby any challenge made under Section 34 cannot be entertained in terms of law applicable in India. Parties have expressly excluded application of Part 1 of 1996 Act, except provisions of Section 9 of Part 1 of Arbitration Act, 1996.
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State of Madras Vs. C.P. Agencies & Another | thereof are only matters of history set out as matters of inducement and are not, strictly speaking, parts of the cause of action on which this suit has been filed. The gist of the plaintiffs cause of action, as disclosed in the plaint, is for the recovery of godown rent for storing the goods agreed to be paid by the first defendant through the second defendant at rates mentioned in the bill submitted by the plaintiff. The question is whether this real cause of action has been sufficiently stated in the notice under S. 80.5. Turning now to the notice, which is Ex. P-6, we find an averment in paragraph 3 that the plaintiff had supplied about 11,000 tons of black gram to the first defendant, the Madras Government, in or about the year 1945 through the Assistant Marketing Officer of the Madras Government stationed at Nagpur, who is none other than the second defendant. This paragraph quite clearly indicates that in the matter of the sale of black gram the second defendant, the Assistant Marketing Officer, acted for the 1st defendant, the Madras Government. Then in paragraph 4 it is averred that the black gram remained undespatched for more than two months because transport facilities were not arranged by the Madras Government. The implication of the allegation that the goods remained undespatched for more than two months is that something was to happen after the expiry of two months. Reference is made to the correspondence on this subject including a letter of the Assistant Marketing Officer, the second defendant, which, as said in paragraph 1 of the notice, was attached for ready reference and necessary action. Paragraph 5 refers to the bill of the plaintiff which the first defendant wanted to verify from the account books. In the penultimate paragraph of the notice a claim is made for interest at the rate of nine per cent. per annum.6. Learned counsel appearing for the appellant points out that it is not clear at all from the notice whether the plaintiffs claim is based on a contract for the payment of godown rent or on the footing of damages for use and occupation of the plaintiffs godown or through whom the first defendant is alleged to have entered into the alleged agreement for the payment of godown rent or interest thereon and he submits that in the premises the notice does not fulfil the requirements of Section 80. In considering the question so posed before us we must bear in mind the following observations made by this Court in Dhian Singh Sobha Singh v. Union of India, 1958 SCR 781 at pp. 795 and 796: (AIR 1958 SC 274 at p. 281):"We are constrained to observed that the approach of the High Court to this question was not well-founded. The Privy Council no doubt laid down in 54 Ind App 338: (AIR 1927 PC 176 ) (supra) that the terms of this Section should be strictly complied with. That does not however, mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense. As was stated by Pollock C. B. in Jones v. Nicholls, (1844) 153 ER 149 at p. 150, we must import a little common sense into notices of this kind. Beaumont C. J. also observed in Chandu Lal Vadilal v. Govt. of Bombay, ILR (1943) Bom 128: (AIR 1943 Bom 138 ), One must construe S. 80 with some regard to common sense and to the object with which it appears to have been passed... ". It should be remembered that Ex. P-6 is a legal notice of a suit sent through a lawyer. It is well known that a claim for "rent", in legal parlance, can only be founded on a contract. Throughout this notice the claim is described as "godown rent" and not damages for use and occupation of the godown. Therefore, the claim, prima facie, appears to be founded on a contract. Paragraph 3 is quite explicit that the supply of black gram by the plaintiff to the first defendant was arranged by and through the Assistant Marketing Officer, the second defendant. The arrangement for payment of godown rent was only incidental to the contract of supply of the goods and it is not unreasonable to infer that this arrangement was also made by and through the second defendant acting for the first defendant. The relief claimed in paragraph 2 of the notice is that the Madras Government should pay up the amount claimed and if it does not pay or the failure is found to be due to the officer of the Madras Government, then the officer concerned should be held responsible, which indicates that the transaction was through some officer and the officer concerned in this case can be no other than the Assistant Marketing Officer through whom the goods were supplied, as stated in paragraph 3 of the notice. In the next place, paragraph 3 indicates that the godown rent is claimed for having stored 11,000 tons of black gram. Paragraphs 1 and 4 indicate that the godown rent became payable as the goods remained undespatched for more than two months on account of no arrangement for transport facilities having been made by the first defendant, the Madras Government. The bill mentioned in paragraph 5 would show the rate at which the godown rent was calculated and the period for which it was claimed.Therefore, on a fair reading of the notice it may be said that the fact of the contract for the payment of the godown rent, the quantity of goods stored, the rate at which and the period for which the claim was made and the failure of the first defendant to pay the same are sufficiently stated so as to enable the first defendant, which is the appellant before us, to know what the plaintiffs claim was about and whether the claim should be conceded or resisted. | 0[ds]Therefore, on a fair reading of the notice it may be said that the fact of the contract for the payment of the godown rent, the quantity of goods stored, the rate at which and the period for which the claim was made and the failure of the first defendant to pay the same are sufficiently stated so as to enable the first defendant, which is the appellant before us, to know what the plaintiffs claim was about and whether the claim should be conceded oris well known that a claim for "rent", in legal parlance, can only be founded on a contract. Throughout this notice the claim is described as "godown rent" and not damages for use and occupation of the godown. Therefore, the claim, prima facie, appears to be founded on a contract. | 0 | 2,240 | 156 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
thereof are only matters of history set out as matters of inducement and are not, strictly speaking, parts of the cause of action on which this suit has been filed. The gist of the plaintiffs cause of action, as disclosed in the plaint, is for the recovery of godown rent for storing the goods agreed to be paid by the first defendant through the second defendant at rates mentioned in the bill submitted by the plaintiff. The question is whether this real cause of action has been sufficiently stated in the notice under S. 80.5. Turning now to the notice, which is Ex. P-6, we find an averment in paragraph 3 that the plaintiff had supplied about 11,000 tons of black gram to the first defendant, the Madras Government, in or about the year 1945 through the Assistant Marketing Officer of the Madras Government stationed at Nagpur, who is none other than the second defendant. This paragraph quite clearly indicates that in the matter of the sale of black gram the second defendant, the Assistant Marketing Officer, acted for the 1st defendant, the Madras Government. Then in paragraph 4 it is averred that the black gram remained undespatched for more than two months because transport facilities were not arranged by the Madras Government. The implication of the allegation that the goods remained undespatched for more than two months is that something was to happen after the expiry of two months. Reference is made to the correspondence on this subject including a letter of the Assistant Marketing Officer, the second defendant, which, as said in paragraph 1 of the notice, was attached for ready reference and necessary action. Paragraph 5 refers to the bill of the plaintiff which the first defendant wanted to verify from the account books. In the penultimate paragraph of the notice a claim is made for interest at the rate of nine per cent. per annum.6. Learned counsel appearing for the appellant points out that it is not clear at all from the notice whether the plaintiffs claim is based on a contract for the payment of godown rent or on the footing of damages for use and occupation of the plaintiffs godown or through whom the first defendant is alleged to have entered into the alleged agreement for the payment of godown rent or interest thereon and he submits that in the premises the notice does not fulfil the requirements of Section 80. In considering the question so posed before us we must bear in mind the following observations made by this Court in Dhian Singh Sobha Singh v. Union of India, 1958 SCR 781 at pp. 795 and 796: (AIR 1958 SC 274 at p. 281):"We are constrained to observed that the approach of the High Court to this question was not well-founded. The Privy Council no doubt laid down in 54 Ind App 338: (AIR 1927 PC 176 ) (supra) that the terms of this Section should be strictly complied with. That does not however, mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense. As was stated by Pollock C. B. in Jones v. Nicholls, (1844) 153 ER 149 at p. 150, we must import a little common sense into notices of this kind. Beaumont C. J. also observed in Chandu Lal Vadilal v. Govt. of Bombay, ILR (1943) Bom 128: (AIR 1943 Bom 138 ), One must construe S. 80 with some regard to common sense and to the object with which it appears to have been passed... ". It should be remembered that Ex. P-6 is a legal notice of a suit sent through a lawyer. It is well known that a claim for "rent", in legal parlance, can only be founded on a contract. Throughout this notice the claim is described as "godown rent" and not damages for use and occupation of the godown. Therefore, the claim, prima facie, appears to be founded on a contract. Paragraph 3 is quite explicit that the supply of black gram by the plaintiff to the first defendant was arranged by and through the Assistant Marketing Officer, the second defendant. The arrangement for payment of godown rent was only incidental to the contract of supply of the goods and it is not unreasonable to infer that this arrangement was also made by and through the second defendant acting for the first defendant. The relief claimed in paragraph 2 of the notice is that the Madras Government should pay up the amount claimed and if it does not pay or the failure is found to be due to the officer of the Madras Government, then the officer concerned should be held responsible, which indicates that the transaction was through some officer and the officer concerned in this case can be no other than the Assistant Marketing Officer through whom the goods were supplied, as stated in paragraph 3 of the notice. In the next place, paragraph 3 indicates that the godown rent is claimed for having stored 11,000 tons of black gram. Paragraphs 1 and 4 indicate that the godown rent became payable as the goods remained undespatched for more than two months on account of no arrangement for transport facilities having been made by the first defendant, the Madras Government. The bill mentioned in paragraph 5 would show the rate at which the godown rent was calculated and the period for which it was claimed.Therefore, on a fair reading of the notice it may be said that the fact of the contract for the payment of the godown rent, the quantity of goods stored, the rate at which and the period for which the claim was made and the failure of the first defendant to pay the same are sufficiently stated so as to enable the first defendant, which is the appellant before us, to know what the plaintiffs claim was about and whether the claim should be conceded or resisted.
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Therefore, on a fair reading of the notice it may be said that the fact of the contract for the payment of the godown rent, the quantity of goods stored, the rate at which and the period for which the claim was made and the failure of the first defendant to pay the same are sufficiently stated so as to enable the first defendant, which is the appellant before us, to know what the plaintiffs claim was about and whether the claim should be conceded oris well known that a claim for "rent", in legal parlance, can only be founded on a contract. Throughout this notice the claim is described as "godown rent" and not damages for use and occupation of the godown. Therefore, the claim, prima facie, appears to be founded on a contract.
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Srei Infrastructure Finance Limited Vs. Tuff Drilling Private Limited | Bank Ltd. (supra) and Anil Sood v. Presiding Officer, Labour Court II, (2001) 10 SCC 534 , Patna High Court further laid down in Paragraph 39 as given below: 39. The two Supreme Court decisions under the Industrial Disputes Act are also a pointer in the direction that the arbitral tribunal must be held to have the power of procedural review and the authority to recall, on sufficient cause being shown, an order terminating the proceeding Under Section 25(a) of the Act. The second question too is, thus, answered in the affirmative and in favour of the Petitioner. 28. Delhi High Court in Awasthi Construction Co. v. Govt. of NCT of Delhi and Anr., 2013 (1) Arb. LR 70 (Delhi)(DB) has elaborately considered this issue. In Paragraph 17 and 18, following has been held: 17. We may in this regard also notice that the legislature, in Section 25, has not provided for termination of proceedings automatically on default by a party but has vested the discretion in the arbitral tribunal to, on sufficient cause being shown condone such default. We are of the view that no distinction ought to be drawn between showing such sufficient cause before the proceedings are terminated and after the proceedings are terminated. If the arbitral tribunal is empowered to condone default on sufficient cause being shown, it matters not when the same is shown. It may well nigh be possible that the sufficient cause itself is such which prevented the party concerned from showing it before the proceedings terminated. It would be a pedantic reading of the provision to hold that the arbitral tribunal in such cases also stands denuded. Once the legislature has vested the arbitral tribunal with such power, an order of termination cannot be allowed to come in the way of exercise thereof. 18. There is another reason for us to hold so. The emphasis of the Arbitration Act is to provide an alternative dispute resolution mechanism. The provisions of the Act ought to be interpreted in a manner that would make such adjudication effective and not in a manner that would make arbitration proceedings cumbersome. A view that the arbitral tribunal is precluded, even where sufficient cause exists, from reviving the arbitral proceedings and the only remedy available to a party is a writ petition and which remedy is available only in the High Court often situated at a distance from the place where the parties are located, would be a deterrent to arbitration. It is also worth mentioning that Section 19(2) of the Act permits the parties to agree on the procedure to be followed by the arbitral tribunal. The parties may, while so laying down the procedure, provide for the remedy of review/revival of arbitral proceedings and which agreement would be binding on the arbitral tribunal. If the arbitral tribunal in such a situation would be empowered to, on sufficient cause being shown, revive the arbitral proceedings, we see no reason to, in the absence of such an agreement hold the arbitral tribunal to be not empowered to do so. If it were to be held that such power of review/recall is not available to an arbitral tribunal, the arbitral tribunal would not be competent to set aside an order Under Section 25(b) also, compelling the Respondent against whom proceedings have been continued, to file a writ petition, making the continuation of proceedings before the arbitral tribunal a useless exercise. 29. The Delhi High Court again reiterated the same principle in ATV Projects India Ltd. v. Indian Oil Corporation Ltd. and Anr., 200(2013) Delhi Law Times 553 (DB). 30. The Madras High Court in Bharat Heavy Electricals Limited v. Jyothi Turbopower Services Private Limited and Ors., 2017(1) Article LR 289 (Madras) again took the view that after terminating the proceedings Under Section 25(a), the arbitral tribunal can recall the said order on sufficient cause being shown and the arbitral tribunal does not become functus officio after passing an order Under Section 25(a). The Madras High Court has agreed with the view expressed by the Division Bench of the Delhi High Court as noticed above. 31. A contrary view has also been expressed by certain High Courts. The Kerala High Court in PMA Shukkur v. Muthoot Vehicle, (2010) Arb. LR 121 (Kerala), held that the power to set aside an ex-parte award vests in the Court, and the arbitrator does not have any concurrent power to set aside an ex-parte award. 32. We endorse the views of Patna High Court, Delhi High Court and Madras High Court as noted above, in so far as they have held that the arbitral tribunal after termination of proceedings Under Section 25(a) on sufficient cause being shown can recall the order and re-commence the proceedings. 33. In the present case, the arbitral tribunal has rejected the application of the claimant by order dated 26.04.2012 taking the view that after an order is passed by him terminating the proceedings, he cannot pass the order recommencing the arbitration proceedings. In view of the above discussions, we are of the view that the arbitral tribunal committed an error in holding that it has no jurisdiction to recall an order terminating the proceedings Under Section 25(a). The arbitral tribunal having not considered the cause shown by the claimant in its application, it is in the ends of justice that the arbitral tribunal be asked to consider the application filed by the claimant dated 20.01.2012 praying for recall of the order dated 12.12.2011 and to grant extension for filing the statement of claim. 34. Coming to Issue No. 2 and 3, in view of what we have said regarding Issue No. 1 that arbitral tribunal has jurisdiction to consider an application for recall of order terminating the proceedings Under Section 25(a), it is not necessary for us to enter into Issue No. 2 and 3 for purposes of this case. For deciding the present Civil Appeal, our answer to Issue No. 1 is sufficient to dispose of the matter. | 0[ds]12. The arbitration is a quasi judicial proceeding, equitable in nature or character which differs from a litigation in a Court. The power and functions of arbitral tribunal are statutorily regulated. The tribunals are special arbitration with institutional mechanism brought into existence by or under statute to decide dispute arising with reference to that particular statute or to determine controversy referred to it. The tribunal may be a statutory tribunal or tribunal constituted under the provisions of the Constitution of India. Section 9 of the Code of Civil Procedure vests into the Civil Court jurisdiction to entertain and determine any civil dispute. The constitution of tribunals has been with intent and purpose to take out different categories of litigation into the special tribunal for speedy and effective determination of disputes in the interest of the society. Whenever, by a legislative enactment jurisdiction exercised by ordinary civil court is transferred or entrusted to tribunals such tribunals are entrusted with statutory power. The arbitral tribunals in the statute of 1996 are no different, they decide the lis between the parties, follows Rules and procedure conforming to the principle of natural justice, the adjudication has finality subject to remedy provided under the 1996 Act. Section 8 of the 1996 Act obliges a judicial authority in a matter which is a subject of an agreement to refer the parties to arbitration. The reference to arbitral tribunal thus can be made by judicial authority or an arbitrator can be appointed in accordance with the arbitration agreement Under Section 11 of the 1996 Act.Issue No. ISection 18 contains the principle of natural justice to give full opportunity to parties to present their case.Section 18 provides the parties shall be treated with equality and each party shall be given a full opportunity to present his case.Section 18 contains the principle of natural justice to give full opportunity to parties to present their case.15. Section 19 of the Act provides for determination of Rules of procedure. Sub-clause (1) of Section 19 provides that the arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. The words arbitral tribunal shall not be bound are the words of amplitude and not of a restriction. These words do not prohibit the arbitral tribunal from drawing sustenance from the fundamental principles underling the Code of Civil Procedure or Indian Evidence Act but the tribunal is not bound to observe the provisions of Code with all of its rigour. As per Sub-clause (2) of Section 19 the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.19. In the present case, proceedings were terminated vide Order dated 12.12.2011 Under Section 25(a). After termination of proceedings, application to recall the said order was filed by claimant on 20.01.2012, which was rejected by arbitral tribunal on the ground that it has no jurisdiction to re-commence the arbitration proceedings. Section 25 contemplates a situation when the claimant fails to communicate his statement of claim within the time as envisaged by Section 23, the arbitral tribunal has to terminate the proceedings. This Section thus contemplates a situation where arbitration proceeding has not been started. The most important words contained in Section 25 are where without showing sufficient cause-the claimant fails to communicate his statement of claim. Under Section 23(1), the claimant is to state the facts supporting his claim within the period of time agreed upon by the parties or determined by the arbitral tribunal. The question of termination of proceedings thus arises only after the time agreed upon between the parties or determined by the arbitral tribunal comes to an end. When the time as contemplated Under Section 23(1) expires and no sufficient cause is shown by the claimant the arbitral tribunal shall terminate the proceedings. The question of showing sufficient cause will arise only when the claimant is asked to show cause as to why he failed to submit his claim within the time as envisaged Under Section 23(1) or the claimant, on his own, before the order is passed Under Section 25(a) to terminate the proceedings comes before the arbitral tribunal, showing sufficient cause for not being able to submit his claim within the time. In both the circumstances, i.e. when a show-cause notice is issued to the claimant as observed above or claimant of his own shows cause for non-filing the claim within the time the arbitral tribunal shall take a call on terminating the proceedings. It is easy to comprehend that in the event, the claimant shows a sufficient cause, the arbitral tribunal can accept the statement of claim even after expiry of the time as envisaged Under Section 23(1) or grant further time to the claimant to file a claim. Thus, on sufficient cause being shown by a claimant even though time has expired Under Section 23(1), it is not obligatory for the arbitral tribunal to terminate the proceedings. The conjunction of the wording where without showing sufficient cause and the claimant fails to communicate his statement of claim would indicate that it is a duty of the arbitral tribunal to inform the claimant that he has failed to communicate his claim on the date fixed for that and requires him to show-cause why the arbitral proceedings should not be terminated? Opportunity to show sufficient cause for his failure to communicate his claim statement can only be given after he has actually failed to do so. Whether in a case where claimant failed to file a statement of claim and has failed also to show-cause before an order of termination of proceedings is passed, claimant is entitled to show-cause subsequent to the termination is the question which has fallen for consideration.20. When the arbitral tribunal without sufficient cause being shown by the claimant to file the claim statement can terminate the proceedings, subsequent to termination of proceedings, if the sufficient cause is shown, we see no impediment in the power of the arbitral tribunal to accept the show-cause and permit the claimant to file the claim. The Scheme of Section 25 of the Act clearly indicates that on sufficient cause being shown, the statement of claim can be permitted to be filed even after the time as fixed by Section 23(1) has expired. Thus, even after passing the order of terminating the proceedings, if sufficient cause is shown, the claims of statement can be accepted by the arbitral tribunal by accepting the show-cause and there is no lack of the jurisdiction in the arbitral tribunal to recall the earlier order on sufficient cause being shown.e situation as contemplated Under Section 32(2) (a) and 32(2) (b) are not attracted in the facts of this case.Sections 32(2) and 33(1), Section 33(3) further contemplates termination of the mandate of the arbitral tribunal, whereas the aforesaid words are missing in Section 25. When the legislature has used the phrase the mandate of the arbitral tribunal shall terminate in Section 32(3), non-use of such phrase in Section 25(a) has to be treated with a purpose and object. The purpose and object can only be that if the claimant shows sufficient cause, the proceedings can be re-commenced.23. It is true that power of review has to be expressly conferred by a Statute.25. There cannot be a dispute that the power exercised by the arbitral tribunal is a quasi-judicial. In view of the provisions of the 1996 Act, which confers various statutory powers and obligations on the arbitral tribunal, we do not find any such distinction between the statutory tribunal constituted under the statutory provisions or Constitution in so far as the power of procedural review is concerned. We have already noticed that Section 19 provides that arbitral tribunal shall not be bound by the Rules of procedure as contained in Code of Civil Procedure. Section 19 cannot be read to mean that arbitral tribunal is incapacitated in drawing sustenance from any provisions of Code of Civil Procedure. This was clearly laid down in Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC 646. In Paragraph 98(n), following was stated:(n) It is not bound by the procedure laid down under the Code. It may however be noticed in this regard that just because the Tribunal is not bound by the Code, it does not mean that it would not have jurisdiction to exercise powers of a court as contained in the Code. Rather, the Tribunal can travel beyond the Code of Civil Procedure and the only fetter that is put on its powers is to observe the principles of natural justice, (See Industrial Credit and Investment Corpn. of India Ltd. v. Grapco Industries Ltd.)26. We thus are of the view that principles underlying Order 9 Rule 13 can very well be invoked by the arbitrator. There is nothing on record to indicate that parties have agreed to the contrary. The issue, which has arisen for consideration has engaged attention of different High Courts from time to time. Patna High Court in M/s. Senbo Engineering Ltd. v. State of Bihar and Ors., AIR 2004 Patna 33, had occasion to consider the order terminating the proceedings Under Section 25(a). Patna High Court after considering the provision has held that arbitral tribunal has power to review on sufficient cause being shown. In paragraph 32, following has been laid down:32. I find the submissions of Mr. Chatterjee well founded. Mr. Chatterjee has relied upon the provisions of the Act itself (that is to say, the internal aids to interpretation) in support of the point that on sufficient cause being shown, the arbitral tribunal has full authority and power to recall an order Under Section 25(a) of the Act. I think that one would arrive at the same conclusion on the basis of some external aids to interpretation.27. Referring to judgment of this Court in Grindlays Bank Ltd. (supra) and Anil Sood v. Presiding Officer, Labour Court II, (2001) 10 SCC 534 , Patna High Court further laid down in Paragraph 39 as given below:39. The two Supreme Court decisions under the Industrial Disputes Act are also a pointer in the direction that the arbitral tribunal must be held to have the power of procedural review and the authority to recall, on sufficient cause being shown, an order terminating the proceeding Under Section 25(a) of the Act. The second question too is, thus, answered in the affirmative and in favour of the Petitioner.28. Delhi High Court in Awasthi Construction Co. v. Govt. of NCT of Delhi and Anr., 2013 (1) Arb. LR 70 (Delhi)(DB) has elaborately considered this issue. In Paragraph 17 and 18, following has been held:17. We may in this regard also notice that the legislature, in Section 25, has not provided for termination of proceedings automatically on default by a party but has vested the discretion in the arbitral tribunal to, on sufficient cause being shown condone such default. We are of the view that no distinction ought to be drawn between showing such sufficient cause before the proceedings are terminated and after the proceedings are terminated. If the arbitral tribunal is empowered to condone default on sufficient cause being shown, it matters not when the same is shown. It may well nigh be possible that the sufficient cause itself is such which prevented the party concerned from showing it before the proceedings terminated. It would be a pedantic reading of the provision to hold that the arbitral tribunal in such cases also stands denuded. Once the legislature has vested the arbitral tribunal with such power, an order of termination cannot be allowed to come in the way of exercise thereof.18. There is another reason for us to hold so. The emphasis of the Arbitration Act is to provide an alternative dispute resolution mechanism. The provisions of the Act ought to be interpreted in a manner that would make such adjudication effective and not in a manner that would make arbitration proceedings cumbersome. A view that the arbitral tribunal is precluded, even where sufficient cause exists, from reviving the arbitral proceedings and the only remedy available to a party is a writ petition and which remedy is available only in the High Court often situated at a distance from the place where the parties are located, would be a deterrent to arbitration. It is also worth mentioning that Section 19(2) of the Act permits the parties to agree on the procedure to be followed by the arbitral tribunal. The parties may, while so laying down the procedure, provide for the remedy of review/revival of arbitral proceedings and which agreement would be binding on the arbitral tribunal. If the arbitral tribunal in such a situation would be empowered to, on sufficient cause being shown, revive the arbitral proceedings, we see no reason to, in the absence of such an agreement hold the arbitral tribunal to be not empowered to do so. If it were to be held that such power of review/recall is not available to an arbitral tribunal, the arbitral tribunal would not be competent to set aside an order Under Section 25(b) also, compelling the Respondent against whom proceedings have been continued, to file a writ petition, making the continuation of proceedings before the arbitral tribunal a useless exercise.29. The Delhi High Court again reiterated the same principle in ATV Projects India Ltd. v. Indian Oil Corporation Ltd. and Anr., 200(2013) Delhi Law Times 553 (DB).30. The Madras High Court in Bharat Heavy Electricals Limited v. Jyothi Turbopower Services Private Limited and Ors., 2017(1) Article LR 289 (Madras) again took the view that after terminating the proceedings Under Section 25(a), the arbitral tribunal can recall the said order on sufficient cause being shown and the arbitral tribunal does not become functus officio after passing an order Under Section 25(a). The Madras High Court has agreed with the view expressed by the Division Bench of the Delhi High Court as noticed above.31. A contrary view has also been expressed by certain High Courts.32. We endorse the views of Patna High Court, Delhi High Court and Madras High Court as noted above, in so far as they have held that the arbitral tribunal after termination of proceedings Under Section 25(a) on sufficient cause being shown can recall the order and re-commence the proceedings.33. In the present case, the arbitral tribunal has rejected the application of the claimant by order dated 26.04.2012 taking the view that after an order is passed by him terminating the proceedings, he cannot pass the order recommencing the arbitration proceedings. In view of the above discussions, we are of the view that the arbitral tribunal committed an error in holding that it has no jurisdiction to recall an order terminating the proceedings Under Section 25(a). The arbitral tribunal having not considered the cause shown by the claimant in its application, it is in the ends of justice that the arbitral tribunal be asked to consider the application filed by the claimant dated 20.01.2012 praying for recall of the order dated 12.12.2011 and to grant extension for filing the statement of claim.34. Coming to Issue No. 2 and 3, in view of what we have said regarding Issue No. 1 that arbitral tribunal has jurisdiction to consider an application for recall of order terminating the proceedings Under Section 25(a), it is not necessary for us to enter into Issue No. 2 and 3 for purposes of this case. For deciding the present Civil Appeal, our answer to Issue No. 1 is sufficient to dispose of the matter. | 0 | 6,571 | 2,895 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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Bank Ltd. (supra) and Anil Sood v. Presiding Officer, Labour Court II, (2001) 10 SCC 534 , Patna High Court further laid down in Paragraph 39 as given below: 39. The two Supreme Court decisions under the Industrial Disputes Act are also a pointer in the direction that the arbitral tribunal must be held to have the power of procedural review and the authority to recall, on sufficient cause being shown, an order terminating the proceeding Under Section 25(a) of the Act. The second question too is, thus, answered in the affirmative and in favour of the Petitioner. 28. Delhi High Court in Awasthi Construction Co. v. Govt. of NCT of Delhi and Anr., 2013 (1) Arb. LR 70 (Delhi)(DB) has elaborately considered this issue. In Paragraph 17 and 18, following has been held: 17. We may in this regard also notice that the legislature, in Section 25, has not provided for termination of proceedings automatically on default by a party but has vested the discretion in the arbitral tribunal to, on sufficient cause being shown condone such default. We are of the view that no distinction ought to be drawn between showing such sufficient cause before the proceedings are terminated and after the proceedings are terminated. If the arbitral tribunal is empowered to condone default on sufficient cause being shown, it matters not when the same is shown. It may well nigh be possible that the sufficient cause itself is such which prevented the party concerned from showing it before the proceedings terminated. It would be a pedantic reading of the provision to hold that the arbitral tribunal in such cases also stands denuded. Once the legislature has vested the arbitral tribunal with such power, an order of termination cannot be allowed to come in the way of exercise thereof. 18. There is another reason for us to hold so. The emphasis of the Arbitration Act is to provide an alternative dispute resolution mechanism. The provisions of the Act ought to be interpreted in a manner that would make such adjudication effective and not in a manner that would make arbitration proceedings cumbersome. A view that the arbitral tribunal is precluded, even where sufficient cause exists, from reviving the arbitral proceedings and the only remedy available to a party is a writ petition and which remedy is available only in the High Court often situated at a distance from the place where the parties are located, would be a deterrent to arbitration. It is also worth mentioning that Section 19(2) of the Act permits the parties to agree on the procedure to be followed by the arbitral tribunal. The parties may, while so laying down the procedure, provide for the remedy of review/revival of arbitral proceedings and which agreement would be binding on the arbitral tribunal. If the arbitral tribunal in such a situation would be empowered to, on sufficient cause being shown, revive the arbitral proceedings, we see no reason to, in the absence of such an agreement hold the arbitral tribunal to be not empowered to do so. If it were to be held that such power of review/recall is not available to an arbitral tribunal, the arbitral tribunal would not be competent to set aside an order Under Section 25(b) also, compelling the Respondent against whom proceedings have been continued, to file a writ petition, making the continuation of proceedings before the arbitral tribunal a useless exercise. 29. The Delhi High Court again reiterated the same principle in ATV Projects India Ltd. v. Indian Oil Corporation Ltd. and Anr., 200(2013) Delhi Law Times 553 (DB). 30. The Madras High Court in Bharat Heavy Electricals Limited v. Jyothi Turbopower Services Private Limited and Ors., 2017(1) Article LR 289 (Madras) again took the view that after terminating the proceedings Under Section 25(a), the arbitral tribunal can recall the said order on sufficient cause being shown and the arbitral tribunal does not become functus officio after passing an order Under Section 25(a). The Madras High Court has agreed with the view expressed by the Division Bench of the Delhi High Court as noticed above. 31. A contrary view has also been expressed by certain High Courts. The Kerala High Court in PMA Shukkur v. Muthoot Vehicle, (2010) Arb. LR 121 (Kerala), held that the power to set aside an ex-parte award vests in the Court, and the arbitrator does not have any concurrent power to set aside an ex-parte award. 32. We endorse the views of Patna High Court, Delhi High Court and Madras High Court as noted above, in so far as they have held that the arbitral tribunal after termination of proceedings Under Section 25(a) on sufficient cause being shown can recall the order and re-commence the proceedings. 33. In the present case, the arbitral tribunal has rejected the application of the claimant by order dated 26.04.2012 taking the view that after an order is passed by him terminating the proceedings, he cannot pass the order recommencing the arbitration proceedings. In view of the above discussions, we are of the view that the arbitral tribunal committed an error in holding that it has no jurisdiction to recall an order terminating the proceedings Under Section 25(a). The arbitral tribunal having not considered the cause shown by the claimant in its application, it is in the ends of justice that the arbitral tribunal be asked to consider the application filed by the claimant dated 20.01.2012 praying for recall of the order dated 12.12.2011 and to grant extension for filing the statement of claim. 34. Coming to Issue No. 2 and 3, in view of what we have said regarding Issue No. 1 that arbitral tribunal has jurisdiction to consider an application for recall of order terminating the proceedings Under Section 25(a), it is not necessary for us to enter into Issue No. 2 and 3 for purposes of this case. For deciding the present Civil Appeal, our answer to Issue No. 1 is sufficient to dispose of the matter.
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point that on sufficient cause being shown, the arbitral tribunal has full authority and power to recall an order Under Section 25(a) of the Act. I think that one would arrive at the same conclusion on the basis of some external aids to interpretation.27. Referring to judgment of this Court in Grindlays Bank Ltd. (supra) and Anil Sood v. Presiding Officer, Labour Court II, (2001) 10 SCC 534 , Patna High Court further laid down in Paragraph 39 as given below:39. The two Supreme Court decisions under the Industrial Disputes Act are also a pointer in the direction that the arbitral tribunal must be held to have the power of procedural review and the authority to recall, on sufficient cause being shown, an order terminating the proceeding Under Section 25(a) of the Act. The second question too is, thus, answered in the affirmative and in favour of the Petitioner.28. Delhi High Court in Awasthi Construction Co. v. Govt. of NCT of Delhi and Anr., 2013 (1) Arb. LR 70 (Delhi)(DB) has elaborately considered this issue. In Paragraph 17 and 18, following has been held:17. We may in this regard also notice that the legislature, in Section 25, has not provided for termination of proceedings automatically on default by a party but has vested the discretion in the arbitral tribunal to, on sufficient cause being shown condone such default. We are of the view that no distinction ought to be drawn between showing such sufficient cause before the proceedings are terminated and after the proceedings are terminated. If the arbitral tribunal is empowered to condone default on sufficient cause being shown, it matters not when the same is shown. It may well nigh be possible that the sufficient cause itself is such which prevented the party concerned from showing it before the proceedings terminated. It would be a pedantic reading of the provision to hold that the arbitral tribunal in such cases also stands denuded. Once the legislature has vested the arbitral tribunal with such power, an order of termination cannot be allowed to come in the way of exercise thereof.18. There is another reason for us to hold so. The emphasis of the Arbitration Act is to provide an alternative dispute resolution mechanism. The provisions of the Act ought to be interpreted in a manner that would make such adjudication effective and not in a manner that would make arbitration proceedings cumbersome. A view that the arbitral tribunal is precluded, even where sufficient cause exists, from reviving the arbitral proceedings and the only remedy available to a party is a writ petition and which remedy is available only in the High Court often situated at a distance from the place where the parties are located, would be a deterrent to arbitration. It is also worth mentioning that Section 19(2) of the Act permits the parties to agree on the procedure to be followed by the arbitral tribunal. The parties may, while so laying down the procedure, provide for the remedy of review/revival of arbitral proceedings and which agreement would be binding on the arbitral tribunal. If the arbitral tribunal in such a situation would be empowered to, on sufficient cause being shown, revive the arbitral proceedings, we see no reason to, in the absence of such an agreement hold the arbitral tribunal to be not empowered to do so. If it were to be held that such power of review/recall is not available to an arbitral tribunal, the arbitral tribunal would not be competent to set aside an order Under Section 25(b) also, compelling the Respondent against whom proceedings have been continued, to file a writ petition, making the continuation of proceedings before the arbitral tribunal a useless exercise.29. The Delhi High Court again reiterated the same principle in ATV Projects India Ltd. v. Indian Oil Corporation Ltd. and Anr., 200(2013) Delhi Law Times 553 (DB).30. The Madras High Court in Bharat Heavy Electricals Limited v. Jyothi Turbopower Services Private Limited and Ors., 2017(1) Article LR 289 (Madras) again took the view that after terminating the proceedings Under Section 25(a), the arbitral tribunal can recall the said order on sufficient cause being shown and the arbitral tribunal does not become functus officio after passing an order Under Section 25(a). The Madras High Court has agreed with the view expressed by the Division Bench of the Delhi High Court as noticed above.31. A contrary view has also been expressed by certain High Courts.32. We endorse the views of Patna High Court, Delhi High Court and Madras High Court as noted above, in so far as they have held that the arbitral tribunal after termination of proceedings Under Section 25(a) on sufficient cause being shown can recall the order and re-commence the proceedings.33. In the present case, the arbitral tribunal has rejected the application of the claimant by order dated 26.04.2012 taking the view that after an order is passed by him terminating the proceedings, he cannot pass the order recommencing the arbitration proceedings. In view of the above discussions, we are of the view that the arbitral tribunal committed an error in holding that it has no jurisdiction to recall an order terminating the proceedings Under Section 25(a). The arbitral tribunal having not considered the cause shown by the claimant in its application, it is in the ends of justice that the arbitral tribunal be asked to consider the application filed by the claimant dated 20.01.2012 praying for recall of the order dated 12.12.2011 and to grant extension for filing the statement of claim.34. Coming to Issue No. 2 and 3, in view of what we have said regarding Issue No. 1 that arbitral tribunal has jurisdiction to consider an application for recall of order terminating the proceedings Under Section 25(a), it is not necessary for us to enter into Issue No. 2 and 3 for purposes of this case. For deciding the present Civil Appeal, our answer to Issue No. 1 is sufficient to dispose of the matter.
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Commissioner of Income Tax-III, Pune Vs. Sinhgad Technical Education Society | out to the contrary. It is for this reason the High Court has also given its imprimatur to the aforesaid approach of the Tribunal. That apart, learned senior counsel appearing for the respondent, argued that notice in respect of Assessment Years 2000-01 and 2001-02 was even time barred.19. We, thus, find that the ITAT rightly permitted this additional ground to be raised and correctly dealt with the same ground on merits as well. Order of the High Court affirming this view of the Tribunal is, therefore, without any blemish. Before us, it was argued by the respondent that notice in respect of the Assessment Years 2000-01 and 2001-02 was time barred. However, in view of our aforementioned findings, it is not necessary to enter into this controversy.20. Insofar as the judgment of the Gujarat High Court relied upon by the learned Solicitor General is concerned, we find that the High Court in that case has categorically held that it is an essential condition precedent that any money, bullion or jewellery or other valuable articles or thing or books of accounts or documents seized or requisitioned should belong to a person other than the person referred to in Section 153A of the Act. This proposition of law laid down by the High Court is correct, which is stated by the Bombay High Court in the impugned judgment as well. The judgment of the Gujarat High Court in the said case went in favour of the Revenue when it was found on facts that the documents seized, in fact, pertain to third party, i.e. the assessee, and, therefore, the said condition precedent for taking action under Section 153C of the Act had been satisfied.21. Likewise, the Delhi High Court also decided the case on altogether different facts which will have no bearing once the matter is examined in the aforesaid hue on the facts of this case. The Bombay High Court has rightly distinguished the said judgment as not applicable giving the following reasons:"8. Reliance on the judgment of the Division Bench of the High Court of Delhi reported in case of SSP Aviation Ltd. v. Deputy Commissioner of Income Tax (2012) 346 ITR 177 is misplaced. There, search was carried out in the case of "P" group of companies. It was found that the assessee before the Honble Delhi High Court had acquired certain development rights from "P" group of companies. Based thereon, the satisfaction was recorded by the Assessing Officer and he issued notice in terms of Section 153C. Thereupon the proceedings were initiated under section 153A and the assessee was directed to file returns for the six assessment years commencing from 2003-04 onwards. The assessees filed returns for those years but disclosed Nil taxable income. These returns were accepted by the Assessing Officer, however, in respect of the assessment year 2007-08 there was a significant difference in the pattern of assessment for this year also, the return was filed for Nil income but there were certain documents and which showed that there were transactions of sale of development rights and from which profits were generated and taxable for the assessment year 2007-08. Thus, the receipt of Rs. 44 crores as deposit in the previous year relevant to the assessment year 2008-09 and later on became subject matter of the writ petition before the Delhi High Court. That was challenging the validity of notice under section 153C read with section 153A. In dealing with such situation and the peculiar facts that the Delhi High Court upheld the satisfaction and the Delhi High Court found that the machinery provided under section 153C read with section 153A equally facilitates inquiry regarding existence of undisclosed income in the hands of a person other than searched person. The provisions have been referred to in details in dealing with a challenge to the legality and validity of the seizure and action founded thereon. We do not find anything in this judgment which would enable us to hold that the tribunals understanding of the said legal provision suffers from any error apparent on the face of the record. The Delhi High Court judgment, therefore, will not carry the case of the revenue any further."We, thus, do not find any merit in these appeals.22. We now advert to the implication of the fact which has been emphasised in para 15. As pointed out in the said para, the assessment order passed by the AO covers eight Assessment Years. Assessment done in six Assessment Years is under Section 153C of the Act. Assessment order is set aside only in respect of four such Assessment Years that too on the technical ground, noted above. This objection pertaining to the four Assessment Years in question does not relate to the other two Assessment Years, namely, 2004-05 and 2005-06. Likewise, this decision has no bearing in respect of assessment done qua Assessment Year 1999-2000 as well as Assessment Year 2006-07. The necessary consequence would be that insofar as the conclusions of the AO in his assessment order regarding the activities of the trust not being genuine and not carried out in accordance with the trust deed or cancellation of registration, denial of benefits of Sections 11 and 12 etc. are concerned, the same would not be affected by this judgment. It is, thus, clarified that this Court has not dealt with the matter on merits insofar as incriminating material found against the assessee or Mr. Navale is concerned. Pithily put, this Court has not given any clean chit to the assessee insofar as the finding of the AO to the effect that the assessee had been indulging in profiteering and collecting capitation fee is concerned. Whatever other repercussions are there, based on these findings, they can follow. This Court was not informed and, therefore, unaware of any challenge to the assessment order in respect of other four Assessment Years and outcome thereof. Wherever any such proceedings are pending, same would be considered without being affected by the outcome of these proceedings. | 0[ds]15. At the outset, it needs to be highlighted that the assessment order passed by the AO on August 7, 2008 covered eight Assessment Years i.e. Assessment Yearto Assessment YearAs noted above, insofar as Assessment Yearis concerned, same was covered under Section 147 of the Act which means in respect of that year, there wereproceedings. Insofar as Assessment Yearis concerned, it was fresh assessment under Section 143(3) of the Act. Thus, insofar as assessment under Section 153C read with Section 143(3) of the Act is concerned, it was in respect of Assessment Years6. Out of that, present appeals relate to four Assessment Years, namely,04 covered by notice under Section 153C of the Act. There is a specific purpose in taking note of this aspect which would be stated by us in the concluding paragraphs of thethis requirement under Section 153C of the Act is essential for assessment under that provision, it becomes a jurisdictional fact. We find this reasoning to be logical and valid, having regard to the provisions of Section 153C of the Act. Para 9 of the order of the ITAT reveals that the ITAT had scanned through the Satisfaction Note and the material which was disclosed therein was culled out and it showed that the same belongsto Assessment Yearor thereafter. After taking note of the material in para 9 of the order, the position that emerges therefrom is discussed in para 10. It was specifically recorded that the counsel for the Department could not point out to the contrary. It is for this reason the High Court has also given its imprimatur to the aforesaid approach of the Tribunal. That apart, learned senior counsel appearing for the respondent, argued that notice in respect of Assessment Years02 was even time barred.19. We, thus, find that the ITAT rightly permitted this additional ground to be raised and correctly dealt with the same ground on merits as well. Order of the High Court affirming this view of the Tribunal is, therefore, without any blemish. Before us, it was argued by the respondent that notice in respect of the Assessment Years02 was time barred. However, in view of our aforementioned findings, it is not necessary to enter into this controversy.20. Insofar as the judgment of the Gujarat High Court relied upon by the learned Solicitor General is concerned, we find that the High Court in that case has categorically held that it is an essential condition precedent that any money, bullion or jewellery or other valuable articles or thing or books of accounts or documents seized or requisitioned should belong to a person other than the person referred to in Section 153A of the Act. This proposition of law laid down by the High Court is correct, which is stated by the Bombay High Court in the impugned judgment as well. The judgment of the Gujarat High Court in the said case went in favour of the Revenue when it was found on facts that the documents seized, in fact, pertain to third party, i.e. the assessee, and, therefore, the said condition precedent for taking action under Section 153C of the Act had been satisfied.We now advert to the implication of the fact which has been emphasised in para 15. As pointed out in the said para, the assessment order passed by the AO covers eight Assessment Years. Assessment done in six Assessment Years is under Section 153C of the Act. Assessment order is set aside only in respect of four such Assessment Years that too on the technical ground, noted above. This objection pertaining to the four Assessment Years in question does not relate to the other two Assessment Years, namely,6. Likewise, this decision has no bearing in respect of assessment done qua Assessment Yearas well as Assessment YearThe necessary consequence would be that insofar as the conclusions of the AO in his assessment order regarding the activities of the trust not being genuine and not carried out in accordance with the trust deed or cancellation of registration, denial of benefits of Sections 11 and 12 etc. are concerned, the same would not be affected by this judgment. It is, thus, clarified that this Court has not dealt with the matter on merits insofar as incriminating material found against the assessee or Mr. Navale is concerned. Pithily put, this Court has not given any clean chit to the assessee insofar as the finding of the AO to the effect that the assessee had been indulging in profiteering and collecting capitation fee is concerned. Whatever other repercussions are there, based on these findings, they can follow. This Court was not informed and, therefore, unaware of any challenge to the assessment order in respect of other four Assessment Years and outcome thereof. Wherever any such proceedings are pending, same would be considered without being affected by the outcome of these proceedings. | 0 | 4,159 | 896 | ### Instruction:
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out to the contrary. It is for this reason the High Court has also given its imprimatur to the aforesaid approach of the Tribunal. That apart, learned senior counsel appearing for the respondent, argued that notice in respect of Assessment Years 2000-01 and 2001-02 was even time barred.19. We, thus, find that the ITAT rightly permitted this additional ground to be raised and correctly dealt with the same ground on merits as well. Order of the High Court affirming this view of the Tribunal is, therefore, without any blemish. Before us, it was argued by the respondent that notice in respect of the Assessment Years 2000-01 and 2001-02 was time barred. However, in view of our aforementioned findings, it is not necessary to enter into this controversy.20. Insofar as the judgment of the Gujarat High Court relied upon by the learned Solicitor General is concerned, we find that the High Court in that case has categorically held that it is an essential condition precedent that any money, bullion or jewellery or other valuable articles or thing or books of accounts or documents seized or requisitioned should belong to a person other than the person referred to in Section 153A of the Act. This proposition of law laid down by the High Court is correct, which is stated by the Bombay High Court in the impugned judgment as well. The judgment of the Gujarat High Court in the said case went in favour of the Revenue when it was found on facts that the documents seized, in fact, pertain to third party, i.e. the assessee, and, therefore, the said condition precedent for taking action under Section 153C of the Act had been satisfied.21. Likewise, the Delhi High Court also decided the case on altogether different facts which will have no bearing once the matter is examined in the aforesaid hue on the facts of this case. The Bombay High Court has rightly distinguished the said judgment as not applicable giving the following reasons:"8. Reliance on the judgment of the Division Bench of the High Court of Delhi reported in case of SSP Aviation Ltd. v. Deputy Commissioner of Income Tax (2012) 346 ITR 177 is misplaced. There, search was carried out in the case of "P" group of companies. It was found that the assessee before the Honble Delhi High Court had acquired certain development rights from "P" group of companies. Based thereon, the satisfaction was recorded by the Assessing Officer and he issued notice in terms of Section 153C. Thereupon the proceedings were initiated under section 153A and the assessee was directed to file returns for the six assessment years commencing from 2003-04 onwards. The assessees filed returns for those years but disclosed Nil taxable income. These returns were accepted by the Assessing Officer, however, in respect of the assessment year 2007-08 there was a significant difference in the pattern of assessment for this year also, the return was filed for Nil income but there were certain documents and which showed that there were transactions of sale of development rights and from which profits were generated and taxable for the assessment year 2007-08. Thus, the receipt of Rs. 44 crores as deposit in the previous year relevant to the assessment year 2008-09 and later on became subject matter of the writ petition before the Delhi High Court. That was challenging the validity of notice under section 153C read with section 153A. In dealing with such situation and the peculiar facts that the Delhi High Court upheld the satisfaction and the Delhi High Court found that the machinery provided under section 153C read with section 153A equally facilitates inquiry regarding existence of undisclosed income in the hands of a person other than searched person. The provisions have been referred to in details in dealing with a challenge to the legality and validity of the seizure and action founded thereon. We do not find anything in this judgment which would enable us to hold that the tribunals understanding of the said legal provision suffers from any error apparent on the face of the record. The Delhi High Court judgment, therefore, will not carry the case of the revenue any further."We, thus, do not find any merit in these appeals.22. We now advert to the implication of the fact which has been emphasised in para 15. As pointed out in the said para, the assessment order passed by the AO covers eight Assessment Years. Assessment done in six Assessment Years is under Section 153C of the Act. Assessment order is set aside only in respect of four such Assessment Years that too on the technical ground, noted above. This objection pertaining to the four Assessment Years in question does not relate to the other two Assessment Years, namely, 2004-05 and 2005-06. Likewise, this decision has no bearing in respect of assessment done qua Assessment Year 1999-2000 as well as Assessment Year 2006-07. The necessary consequence would be that insofar as the conclusions of the AO in his assessment order regarding the activities of the trust not being genuine and not carried out in accordance with the trust deed or cancellation of registration, denial of benefits of Sections 11 and 12 etc. are concerned, the same would not be affected by this judgment. It is, thus, clarified that this Court has not dealt with the matter on merits insofar as incriminating material found against the assessee or Mr. Navale is concerned. Pithily put, this Court has not given any clean chit to the assessee insofar as the finding of the AO to the effect that the assessee had been indulging in profiteering and collecting capitation fee is concerned. Whatever other repercussions are there, based on these findings, they can follow. This Court was not informed and, therefore, unaware of any challenge to the assessment order in respect of other four Assessment Years and outcome thereof. Wherever any such proceedings are pending, same would be considered without being affected by the outcome of these proceedings.
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15. At the outset, it needs to be highlighted that the assessment order passed by the AO on August 7, 2008 covered eight Assessment Years i.e. Assessment Yearto Assessment YearAs noted above, insofar as Assessment Yearis concerned, same was covered under Section 147 of the Act which means in respect of that year, there wereproceedings. Insofar as Assessment Yearis concerned, it was fresh assessment under Section 143(3) of the Act. Thus, insofar as assessment under Section 153C read with Section 143(3) of the Act is concerned, it was in respect of Assessment Years6. Out of that, present appeals relate to four Assessment Years, namely,04 covered by notice under Section 153C of the Act. There is a specific purpose in taking note of this aspect which would be stated by us in the concluding paragraphs of thethis requirement under Section 153C of the Act is essential for assessment under that provision, it becomes a jurisdictional fact. We find this reasoning to be logical and valid, having regard to the provisions of Section 153C of the Act. Para 9 of the order of the ITAT reveals that the ITAT had scanned through the Satisfaction Note and the material which was disclosed therein was culled out and it showed that the same belongsto Assessment Yearor thereafter. After taking note of the material in para 9 of the order, the position that emerges therefrom is discussed in para 10. It was specifically recorded that the counsel for the Department could not point out to the contrary. It is for this reason the High Court has also given its imprimatur to the aforesaid approach of the Tribunal. That apart, learned senior counsel appearing for the respondent, argued that notice in respect of Assessment Years02 was even time barred.19. We, thus, find that the ITAT rightly permitted this additional ground to be raised and correctly dealt with the same ground on merits as well. Order of the High Court affirming this view of the Tribunal is, therefore, without any blemish. Before us, it was argued by the respondent that notice in respect of the Assessment Years02 was time barred. However, in view of our aforementioned findings, it is not necessary to enter into this controversy.20. Insofar as the judgment of the Gujarat High Court relied upon by the learned Solicitor General is concerned, we find that the High Court in that case has categorically held that it is an essential condition precedent that any money, bullion or jewellery or other valuable articles or thing or books of accounts or documents seized or requisitioned should belong to a person other than the person referred to in Section 153A of the Act. This proposition of law laid down by the High Court is correct, which is stated by the Bombay High Court in the impugned judgment as well. The judgment of the Gujarat High Court in the said case went in favour of the Revenue when it was found on facts that the documents seized, in fact, pertain to third party, i.e. the assessee, and, therefore, the said condition precedent for taking action under Section 153C of the Act had been satisfied.We now advert to the implication of the fact which has been emphasised in para 15. As pointed out in the said para, the assessment order passed by the AO covers eight Assessment Years. Assessment done in six Assessment Years is under Section 153C of the Act. Assessment order is set aside only in respect of four such Assessment Years that too on the technical ground, noted above. This objection pertaining to the four Assessment Years in question does not relate to the other two Assessment Years, namely,6. Likewise, this decision has no bearing in respect of assessment done qua Assessment Yearas well as Assessment YearThe necessary consequence would be that insofar as the conclusions of the AO in his assessment order regarding the activities of the trust not being genuine and not carried out in accordance with the trust deed or cancellation of registration, denial of benefits of Sections 11 and 12 etc. are concerned, the same would not be affected by this judgment. It is, thus, clarified that this Court has not dealt with the matter on merits insofar as incriminating material found against the assessee or Mr. Navale is concerned. Pithily put, this Court has not given any clean chit to the assessee insofar as the finding of the AO to the effect that the assessee had been indulging in profiteering and collecting capitation fee is concerned. Whatever other repercussions are there, based on these findings, they can follow. This Court was not informed and, therefore, unaware of any challenge to the assessment order in respect of other four Assessment Years and outcome thereof. Wherever any such proceedings are pending, same would be considered without being affected by the outcome of these proceedings.
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Pfizer (P) Ltd. Bombay Vs. The Workmen | that more than one shift was contemplated by the Standing Order. In this connection, we would not be prepared to uphold the extreme stand taken by both the parties. We cannot hold that because the standing order contemplates the adoption of more than one shift, it is entirely and absolutely in the discretion of the management to make the change without due scrutiny by industrial adjudication, and so, the extreme stand taken by the appellant cannot be upheld; similarly, we cannot accept the contention that because the introduction of 3 shifts would mark a departure from the pattern prevailing in the pharmaceutical industry, the chance cannot be permitted. After all, the question must be considered in the light of relevant facts adduced before the Court, and in doing so, the importance and the necessity of more production must be borne in mind. We are therefore, satisfied that the Tribunal was in error in rejecting the appellants case for the introduction of three shifts.28. As we have already pointed out, the appellant was always willing to consider the question of paying additional amounts to the respondents either by way of increase in wages or by way of compensation in consequence of the change proposed to be made in the working structure of the factory. In fact, we were told that though the Tribunal has ordered that the appellant should pay to the night workers 10% over their basic wages and dearness allowance for the days on which they are required to work in the third shift, the appellant is paying 12% and it is similarly paying 8% to those who work in the second shift. Therefore, it cannot be said that the appellant was not prepared to submit to an order in regard to the additional adequate payment which should be made to the employees consequent upon the introduction of the third shift. Since this matter cannot be decided by us in appeal, we direct that the case should be sent back to the Tribunal which dealt with this dispute for its decision on this question. The Tribunal should allow the parries to lead evidence if they so desire, should hear them and should decide what additional payment should be made to the employees either by way of increase in the wages or by way of compensation, or otherwise in consequence of the change in the working time table of the factory resulting from the introduction of the third shift. The 3 shifts will come into operation after this issue has been finally decided by the Tribunal. Until then, the interim arrangement sanctioned by the award will continue. We trust the Tribunal will deal with the issue remitted to it as expeditiously as possible.29. That takes us to the appeal preferred by the respondents in respect of the reduction of holidays made by the award. We have already seen that the appellant gives to its employees all the public holidays under the Negotiable Instruments Act. In the relevant year, the number of such public holidays was 27. The Tribunal has taken the view that the number of public holidays thus allowed is unreasonably high and has ordered that they should be reduced to 10. Mr. Sule for the respondents contends that there is no justification for this reduction. He urges that the employees have enjoyed this benefit as their term of service condition and no case has been made out for the reduction in that behalf. He has also relied on the fact that the Tribunal reduced the number of holidays substantially because he was not prepared to allow the appellants case for the introduction of the 3rd shift or for the addition in working hours and he argues that if we allow the introduction of the 3rd shift, there would be no justification for confirming the award made by the Tribunal in respect of holidays. There is some force in this latter contention. It is true that the Tribunal made a drastic reduction in the number of holidays partly because he refused the appellant permission to add to the working hours.30. In dealing with the question of paid holidays, it may be relevant to remember that the holidays declared under the Negotiable Instruments Act are usually applicable to Government institutions only and they have certain financial and statutory implications envisaged by the Act itself. The commercial establishments and factories do not usually adopt these holidays and so, it would not be reasonable to insist that the appellant is bound to grant holidays as sanctioned by the Negotiable Instruments Act. Besides, it is now generally accepted that there are too many public holidays in our country and that when the need for industrial production is urgent and paramount, it may be advisable to reduce the number of such holidays in industrial concerns. In dealing with the present appeals, the need for more production which has weighed in our minds in considering the question of 3 shifts, cannot be ignored. It is true that the Maharashtra Government seems to have adopted a very liberal policy in the matter of public holidays. In 1961, for instance, the said Government had declared 28 public holidays out of which 3 happened to fall on Sundays. It may be noticed that other State Governments have shown a tendency to reduce these holidays. U.P., for instance, had 18 public holidays, Andhra Pradesh had 17, Mysore 15 and Madras 14 in 1961. According to the Government of India, the number of public holidays is generally limited to 16. It is obvious that this question does not admit of a categorical answer one way or the other. It has to be decided on an ad hoc basis, bearing in mind all the relevant facts. Having considered all the relevant facts in the present case, we are disposed to think that the number of public holidays which are granted by the appellant to the respondents should be reduced from those sanctioned under the Negotiable Instruments Act to 16 every year. | 1[ds]This grievance is, however, not well-founded because it appears from the record that the appellant was willing to pay for night work and was prepared to consider extra payment for third shift, but the respondents were not agreeable to consider that proposal because they were, on principle, opposed to the introduction of threethe grievance that the respondents would be wholly denied the overtime wages to which they would be entitled under the present arrangements loses much of its validity. We have already noticed that the maximum working hours under the present system in the factory of the appellant is 43 per week and it ranges between 42.05 to 43 hrs. and in no case, can the working hours be increased beyond 48. In fact, as we have already set out, according to the plan which the appellant wants to introduce, there would be an additional load of 1 1/4 working hours, the net additional working load being of the order of 55 mts. per week. In considering the question about the pattern of working arrangements in the pharmaceutical industry in the region, these facts cannot be ignored.It appears that in most of these factories, security and maintenance departments work three shifts. In Sandoz India Ltd., Thana, the pharma plant works 3 shifts. Similarly, in Raptakos Brett and Co. Pvt. Ltd., the Dextrose Maltose section works 3 shifts. In Merck Sharp and Dohme of India Ltd., Chemical manufacturing process goes on under 3 shifts. Similarly, in Parke Davis India Ltd. Chemical Product Operators work 3 shifts besides boiler serang, watchmen and electricians. Sarabhai Chemical, Baroda, have some departments working 3 shifts. Alembic, Baroda, have some departments working 3 shifts. Hindusthan Anti-biotic Poona have some departments working 3 shifts. Glaxo, Thana works 3 shifts. Lederle, Bulsar, works 3 shifts. It is true that the Tribunal was not prepared to consider any concerns situated outside Greater Bombay, but in dealing with the larger issue as to whether it would be permissible to introduce 3 shifts at least in respect of the chemical sections of the pharmaceutical industry, the Tribunal should not have adopted this rigid attitude. Therefore, on the material placed before us, it is clear that the chemical sections of the pharmaceutical factories do work 3 shifts and this would have a direct bearing on the appellants case in regard to P.A.S. section of its factory. Besides, as we have already observed, in dealing with the question about 3 shifts which would inevitably lead to more production, the background of the imperative necessity of today cannot at all bedo not see how this statement can materially affect the main point made by Dr. Joshi that the relevant processes beginning with precipitation which take 20 hrs. must be continuously attended to. It is true that the respondents attempted to contradict Dr. Joshis Statement by examining Mr. Pillai who was working in the P.A.S. department under Mr. Moeller. But Mr. Pillai is obviously not a technical man and it would be futile to suggest that the statements made by him should be preferred to those made by Dr. Joshi. Besides, it is significant that when he was cross-examined, he virtually conceded that the six important processes would take at least 18 1/2 hours and that itself would make it necessary to introduce three shifts. In this connection, we ought to add that the statements made by Dr. Joshi in regard to the time occupied by each process are supported by the contemporaneous record kept by the laboratory workers.This record was produced by Dr. Joshi and it was shown to Mr. Pillai who virtually refused to look at it. Therefore, in our opinion, the Tribunal was in error in holding that Dr. Joshis evidence did not establish the appellants case that the process of producing P.A.S. is a continuous process and in order to improve its quality and to avoid rejection of a large percentage of the product it is necessary that three shifts must be introduced in the session dealing with it. In fact the finding made by the Tribunal in this behalf shows that the Tribunal did not really consider seriously the value of Dr. Joshis evidence and was prepared to accept Mr. Pillais statements though they are plainly partisan statements made by a person without any technical knowledge. Therefore, there can be no doubt whatever that the appellant is entitled to start 3 shifts in the P.A.S. section and produce P.A.S. in larger quantities and of a better quality.At Chandigarh, there are no sufficient production facilities, and, besides, it is a different type of manufacturing unit. Thus, the material available to the appellants factory in Bombay from its sister factory in Chandigarh cannot be promptly dealt with, because the pharmaceutical section is working only in one shift.20. Mr. Treharne has also stated that a large number of orders are outstanding because the production capacity in Bombay is not adequate; and that means that the appellant is continually losing business through its lack of production facility and is unable to meet the demand of needy patients. This factor also adversely affects the appellants position vis-a-vis its competitors; and the witness added that the appellant sometimes finds that it is unable to quote for substantial Government and hospital tenders. Under these circumstances, particularly at the present time when the need for production of beneficent drugs is so great, it is difficult to resist the appellants claim that it should he allowed to introduce 3 shifts in order to produce more drugs and thus meet the requirements of the community. If the two departments are allowed to work 3 shifts. it would not be reasonable to hold that the department dealing in packing, filling, washing, tablet and capsules should not keep pace. The activities of these departments are integrated, and if the object in allowing the appellant to start 3 shifts in its manufacturing departments both chemical and pharmaceutical, is to encourage and enable it to produce more goods, then that object would be assisted if the subsidiary department is also allowed to work 3 shifts. Therefore, we are inclined to take the view that the claim of the appellant to introduce 3 shifts cannot today becan be no doubt that industrial employees are entitled to look forward to a 5-day week and work only by day. Two days rest at the end of every week would afford adequate opportunities to the employees to take part in cultural and recreational activities and would tend to make their work for the remaining 5-days more satisfactory and efficient. Similarly, working at night may, on theoretical grounds, not he desirable. But these are goals which may be reached after we attain an adequately high level in our national economy and industrial development. In the context of today, it would be unreasonable to approach this problem in a purely doctrinaire spirit. If, today, an employer desires to produce more goods which would meet the requirements of the community and is prepared to compensate the employees for the additional work involved in the process, industrial adjudication would be reluctant to discourage the employer and would assist both capital and labour to devise ways to co-operate with each other and produce more. Therefore, the academic arguments urged by Mr. Sule cannot be treated as effective for the purpose of deciding the present appeals.We do not propose to express any definite opinion on this theoretical controversy. As this Court has repeatedly observed, in dealing with industrial adjudication, it would be undesirable to reach conclusions purely on doctrinaire or theoretical considerations. Besides, as we have already emphasised, the adoption of such a theoretical or doctrinaire approach has, in the context of today, lost some of its validity. Therefore, we do not think the Tribunal was right in coming to the conclusion that the appellants claim for the introduction of 3 shifts should be rejected on the ground that it would involve the respondents working at night.25. Incidentally, we may add that from the record, it appears that the appellant is an enlightened employer and that the terms and conditions of service offered by it to the respondents are, on the whole, very fair. It also appears that in the factory itself, the appellant makes efforts to create conditions which would be conducive to the efficient working of the respondents. Miss Kolpe who has been examined by the respondents has stated that aseptic conditions are maintained in sterile areas and the room has to be kept in sterile condition. The workmen assigned to the job spray the rooms with certain chemicals. They do swabbing of machines, walls, windows, and some other workmen have to apply denatured spirit to machine parts before the said machines are used. Cleaning of the cabinet and machines parts has also to be done. It is true that a grievance was made on behalf of the respondents that there are no exhaust fans working in the night shift and that as a result, body itch may be caused if M. A. P. and postassium carbonate are handled barehanded. The appellants explanation was that the workers are given hand gloves and when complaints were made about body itch, the medical survey pointed out that they were not justified. We trust that when the appellant starts 3 shifts, it will take all reasonable precautions to make the conditions of work for the respondents healthy and conducive to the efficient discharge of their duties.26. There is one more minor point which still remains to be considered. It was urged before the Tribunal on behalf of the respondents that the time-table of factory working hours which the appellant proposes to introduce after bringing into force the three shift system would begin at 7.20 in the morning and that would cause inconvenience to the girl employees, and in support of this plea, two girl employees were examined. Miss Desai stated that she stays at Thana and if she had to join duty at 7.20 A.M., she would have to start earlier than 5 A.M. from her house. According to her, there is another girl employee of the factory who stays at Thana. Miss Rodriguies, who also supported the plea of inconvenience, stated that if the work were to begin at 7.20 A.M., she would not be able to get sleep because after she returns home she has to do tutions in order to help her family, and that means she cannot go to bed before midnight. Evidence was also led to show that in the locality where the factory is situated, if the girls were to go early in the morning, they stood the risk of being molested by bad characters. We are not impressed by this evidence. In considering the plea of inconvenience raised by the respondents, it would not be reasonable to rely upon stray cases of girl employees who stay away from Bombay, as, for instance, at Thana, or whose unfortunate economic condition compels them to work after factory hours. On the whole, it can be stated without any hesitation that 7.20 A.M. is not an unduly early hour for work in Bombay. Besides, it is relevant to remember that this hour has been taken as a starting hour having regard to the convenience of transport available in the locality. The Factory Manager, Mr. Pillai whom the appellant examined, has stated that he prepared a summary of the bus and train timings and came to the conclusion that 7.20 A.M. would be convenient to all the workmen. Therefore we do not think the ground of inconvenience on which the Tribunal has relied in rejecting the appellants case for 3 shifts, can be sustained.27. In this connection, we may incidentally refer to the fact that the Standing Order 10(1) (a) of the Standing Orders framed by the appellant clearly provides that more than one shift may be worked in any department or a section of a department at the discretion of the Manager; and it adds that in such cases, workmen shall be liable to he transferred from one shift to another. There is no doubt that the Standing Orders sanctioned by The Industrial Employment (Standing Orders) Act, l946 (No. 20 of 1946) constitute statutory terms and conditions of service between the employer and his employees, and so, it is open to the appellant to suggest that when the respondents took up their employment with it, they know that more shifts than one can be started by the management in its discretion. It is quite true that though the relevant Standing Order enables the appellant to introduce more shifts than one, if a dispute is raised by the employees in that behalf and is referred for industrial adjudication, the Industrial Tribunal may have to consider the reasonableness of the change proposed to be made by the management. It is obvious that additional shifts may result in additional workload being imposed on the employees, and in that sense, may constitute a change in the conditions of service. Therefore, it would be open to the Industrial Tribunal to examine the reasonableness of the change proposed to be made. But in dealing with this question, it would not be irrelevant to bear in mind the fact that more than one shift was contemplated by the Standing Order. In this connection, we would not be prepared to uphold the extreme stand taken by both the parties. We cannot hold that because the standing order contemplates the adoption of more than one shift, it is entirely and absolutely in the discretion of the management to make the change without due scrutiny by industrial adjudication, and so, the extreme stand taken by the appellant cannot be upheld; similarly, we cannot accept the contention that because the introduction of 3 shifts would mark a departure from the pattern prevailing in the pharmaceutical industry, the chance cannot be permitted. After all, the question must be considered in the light of relevant facts adduced before the Court, and in doing so, the importance and the necessity of more production must be borne in mind. We are therefore, satisfied that the Tribunal was in error in rejecting the appellants case for the introduction of three shifts.28. As we have already pointed out, the appellant was always willing to consider the question of paying additional amounts to the respondents either by way of increase in wages or by way of compensation in consequence of the change proposed to be made in the working structure of the factory. In fact, we were told that though the Tribunal has ordered that the appellant should pay to the night workers 10% over their basic wages and dearness allowance for the days on which they are required to work in the third shift, the appellant is paying 12% and it is similarly paying 8% to those who work in the second shift. Therefore, it cannot be said that the appellant was not prepared to submit to an order in regard to the additional adequate payment which should be made to the employees consequent upon the introduction of the third shift. Since this matter cannot be decided by us in appeal, we direct that the case should be sent back to the Tribunal which dealt with this dispute for its decision on this question. The Tribunal should allow the parries to lead evidence if they so desire, should hear them and should decide what additional payment should be made to the employees either by way of increase in the wages or by way of compensation, or otherwise in consequence of the change in the working time table of the factory resulting from the introduction of the third shift. The 3 shifts will come into operation after this issue has been finally decided by the Tribunal. Until then, the interim arrangement sanctioned by the award will continue. We trust the Tribunal will deal with the issue remitted to it as expeditiously as possible.29. That takes us to the appeal preferred by the respondents in respect of the reduction of holidays made by the award. We have already seen that the appellant gives to its employees all the public holidays under the Negotiable Instruments Act. In the relevant year, the number of such public holidays was 27. The Tribunal has taken the view that the number of public holidays thus allowed is unreasonably high and has ordered that they should be reduced to 10.There is some force in this latter contention. It is true that the Tribunal made a drastic reduction in the number of holidays partly because he refused the appellant permission to add to the working hours.30. In dealing with the question of paid holidays, it may be relevant to remember that the holidays declared under the Negotiable Instruments Act are usually applicable to Government institutions only and they have certain financial and statutory implications envisaged by the Act itself. The commercial establishments and factories do not usually adopt these holidays and so, it would not be reasonable to insist that the appellant is bound to grant holidays as sanctioned by the Negotiable Instruments Act. Besides, it is now generally accepted that there are too many public holidays in our country and that when the need for industrial production is urgent and paramount, it may be advisable to reduce the number of such holidays in industrial concerns. In dealing with the present appeals, the need for more production which has weighed in our minds in considering the question of 3 shifts, cannot be ignored. It is true that the Maharashtra Government seems to have adopted a very liberal policy in the matter of public holidays. In 1961, for instance, the said Government had declared 28 public holidays out of which 3 happened to fall on Sundays. It may be noticed that other State Governments have shown a tendency to reduce these holidays. U.P., for instance, had 18 public holidays, Andhra Pradesh had 17, Mysore 15 and Madras 14 in 1961. According to the Government of India, the number of public holidays is generally limited to 16. It is obvious that this question does not admit of a categorical answer one way or the other. It has to be decided on an ad hoc basis, bearing in mind all the relevant facts. Having considered all the relevant facts in the present case, we are disposed to think that the number of public holidays which are granted by the appellant to the respondents should be reduced from those sanctioned under the Negotiable Instruments Act to 16 every year. | 1 | 8,053 | 3,372 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
that more than one shift was contemplated by the Standing Order. In this connection, we would not be prepared to uphold the extreme stand taken by both the parties. We cannot hold that because the standing order contemplates the adoption of more than one shift, it is entirely and absolutely in the discretion of the management to make the change without due scrutiny by industrial adjudication, and so, the extreme stand taken by the appellant cannot be upheld; similarly, we cannot accept the contention that because the introduction of 3 shifts would mark a departure from the pattern prevailing in the pharmaceutical industry, the chance cannot be permitted. After all, the question must be considered in the light of relevant facts adduced before the Court, and in doing so, the importance and the necessity of more production must be borne in mind. We are therefore, satisfied that the Tribunal was in error in rejecting the appellants case for the introduction of three shifts.28. As we have already pointed out, the appellant was always willing to consider the question of paying additional amounts to the respondents either by way of increase in wages or by way of compensation in consequence of the change proposed to be made in the working structure of the factory. In fact, we were told that though the Tribunal has ordered that the appellant should pay to the night workers 10% over their basic wages and dearness allowance for the days on which they are required to work in the third shift, the appellant is paying 12% and it is similarly paying 8% to those who work in the second shift. Therefore, it cannot be said that the appellant was not prepared to submit to an order in regard to the additional adequate payment which should be made to the employees consequent upon the introduction of the third shift. Since this matter cannot be decided by us in appeal, we direct that the case should be sent back to the Tribunal which dealt with this dispute for its decision on this question. The Tribunal should allow the parries to lead evidence if they so desire, should hear them and should decide what additional payment should be made to the employees either by way of increase in the wages or by way of compensation, or otherwise in consequence of the change in the working time table of the factory resulting from the introduction of the third shift. The 3 shifts will come into operation after this issue has been finally decided by the Tribunal. Until then, the interim arrangement sanctioned by the award will continue. We trust the Tribunal will deal with the issue remitted to it as expeditiously as possible.29. That takes us to the appeal preferred by the respondents in respect of the reduction of holidays made by the award. We have already seen that the appellant gives to its employees all the public holidays under the Negotiable Instruments Act. In the relevant year, the number of such public holidays was 27. The Tribunal has taken the view that the number of public holidays thus allowed is unreasonably high and has ordered that they should be reduced to 10. Mr. Sule for the respondents contends that there is no justification for this reduction. He urges that the employees have enjoyed this benefit as their term of service condition and no case has been made out for the reduction in that behalf. He has also relied on the fact that the Tribunal reduced the number of holidays substantially because he was not prepared to allow the appellants case for the introduction of the 3rd shift or for the addition in working hours and he argues that if we allow the introduction of the 3rd shift, there would be no justification for confirming the award made by the Tribunal in respect of holidays. There is some force in this latter contention. It is true that the Tribunal made a drastic reduction in the number of holidays partly because he refused the appellant permission to add to the working hours.30. In dealing with the question of paid holidays, it may be relevant to remember that the holidays declared under the Negotiable Instruments Act are usually applicable to Government institutions only and they have certain financial and statutory implications envisaged by the Act itself. The commercial establishments and factories do not usually adopt these holidays and so, it would not be reasonable to insist that the appellant is bound to grant holidays as sanctioned by the Negotiable Instruments Act. Besides, it is now generally accepted that there are too many public holidays in our country and that when the need for industrial production is urgent and paramount, it may be advisable to reduce the number of such holidays in industrial concerns. In dealing with the present appeals, the need for more production which has weighed in our minds in considering the question of 3 shifts, cannot be ignored. It is true that the Maharashtra Government seems to have adopted a very liberal policy in the matter of public holidays. In 1961, for instance, the said Government had declared 28 public holidays out of which 3 happened to fall on Sundays. It may be noticed that other State Governments have shown a tendency to reduce these holidays. U.P., for instance, had 18 public holidays, Andhra Pradesh had 17, Mysore 15 and Madras 14 in 1961. According to the Government of India, the number of public holidays is generally limited to 16. It is obvious that this question does not admit of a categorical answer one way or the other. It has to be decided on an ad hoc basis, bearing in mind all the relevant facts. Having considered all the relevant facts in the present case, we are disposed to think that the number of public holidays which are granted by the appellant to the respondents should be reduced from those sanctioned under the Negotiable Instruments Act to 16 every year.
### Response:
1
### Explanation:
Standing Order enables the appellant to introduce more shifts than one, if a dispute is raised by the employees in that behalf and is referred for industrial adjudication, the Industrial Tribunal may have to consider the reasonableness of the change proposed to be made by the management. It is obvious that additional shifts may result in additional workload being imposed on the employees, and in that sense, may constitute a change in the conditions of service. Therefore, it would be open to the Industrial Tribunal to examine the reasonableness of the change proposed to be made. But in dealing with this question, it would not be irrelevant to bear in mind the fact that more than one shift was contemplated by the Standing Order. In this connection, we would not be prepared to uphold the extreme stand taken by both the parties. We cannot hold that because the standing order contemplates the adoption of more than one shift, it is entirely and absolutely in the discretion of the management to make the change without due scrutiny by industrial adjudication, and so, the extreme stand taken by the appellant cannot be upheld; similarly, we cannot accept the contention that because the introduction of 3 shifts would mark a departure from the pattern prevailing in the pharmaceutical industry, the chance cannot be permitted. After all, the question must be considered in the light of relevant facts adduced before the Court, and in doing so, the importance and the necessity of more production must be borne in mind. We are therefore, satisfied that the Tribunal was in error in rejecting the appellants case for the introduction of three shifts.28. As we have already pointed out, the appellant was always willing to consider the question of paying additional amounts to the respondents either by way of increase in wages or by way of compensation in consequence of the change proposed to be made in the working structure of the factory. In fact, we were told that though the Tribunal has ordered that the appellant should pay to the night workers 10% over their basic wages and dearness allowance for the days on which they are required to work in the third shift, the appellant is paying 12% and it is similarly paying 8% to those who work in the second shift. Therefore, it cannot be said that the appellant was not prepared to submit to an order in regard to the additional adequate payment which should be made to the employees consequent upon the introduction of the third shift. Since this matter cannot be decided by us in appeal, we direct that the case should be sent back to the Tribunal which dealt with this dispute for its decision on this question. The Tribunal should allow the parries to lead evidence if they so desire, should hear them and should decide what additional payment should be made to the employees either by way of increase in the wages or by way of compensation, or otherwise in consequence of the change in the working time table of the factory resulting from the introduction of the third shift. The 3 shifts will come into operation after this issue has been finally decided by the Tribunal. Until then, the interim arrangement sanctioned by the award will continue. We trust the Tribunal will deal with the issue remitted to it as expeditiously as possible.29. That takes us to the appeal preferred by the respondents in respect of the reduction of holidays made by the award. We have already seen that the appellant gives to its employees all the public holidays under the Negotiable Instruments Act. In the relevant year, the number of such public holidays was 27. The Tribunal has taken the view that the number of public holidays thus allowed is unreasonably high and has ordered that they should be reduced to 10.There is some force in this latter contention. It is true that the Tribunal made a drastic reduction in the number of holidays partly because he refused the appellant permission to add to the working hours.30. In dealing with the question of paid holidays, it may be relevant to remember that the holidays declared under the Negotiable Instruments Act are usually applicable to Government institutions only and they have certain financial and statutory implications envisaged by the Act itself. The commercial establishments and factories do not usually adopt these holidays and so, it would not be reasonable to insist that the appellant is bound to grant holidays as sanctioned by the Negotiable Instruments Act. Besides, it is now generally accepted that there are too many public holidays in our country and that when the need for industrial production is urgent and paramount, it may be advisable to reduce the number of such holidays in industrial concerns. In dealing with the present appeals, the need for more production which has weighed in our minds in considering the question of 3 shifts, cannot be ignored. It is true that the Maharashtra Government seems to have adopted a very liberal policy in the matter of public holidays. In 1961, for instance, the said Government had declared 28 public holidays out of which 3 happened to fall on Sundays. It may be noticed that other State Governments have shown a tendency to reduce these holidays. U.P., for instance, had 18 public holidays, Andhra Pradesh had 17, Mysore 15 and Madras 14 in 1961. According to the Government of India, the number of public holidays is generally limited to 16. It is obvious that this question does not admit of a categorical answer one way or the other. It has to be decided on an ad hoc basis, bearing in mind all the relevant facts. Having considered all the relevant facts in the present case, we are disposed to think that the number of public holidays which are granted by the appellant to the respondents should be reduced from those sanctioned under the Negotiable Instruments Act to 16 every year.
|
Maharashtra General Kamgar Union Vs. State of Maharashtra & Others | permission or refusal is not communicated by the authority within three months of the notice, the authority shall be deemed to have granted such permission on the expiry of the period of three months. Sub-Section (2) and (3) have to be read together because they prescribe the manner of granting or refusing permission in response to notice given under sub-section (1)(c) of section 25-N. Under sub-section (3) if grant of permission or refuse to grant permission is not communicated within 3 months the Government is deemed to have granted permission. Under sub-section (2) the Government may after making such inquiry as it considers fit grant or refuse such permission. Since any grant or refusal or permission after enquiry has to be done within the period of 3 months, such an enquiry by its very nature cannot be an elaborate enquiry into detailed working of the company in question and assessment of its economic viability and so on. Such a quasi judicial enquiry would probably take much longer than 3 months. The shortness of the period available for enquiry and deeming provisions of sub-section (3) indicate that the enquiry before granting or refusing to grant permission to retrench is a preliminary enquiry. Presumably it should show that prima facie the employer has a reasonable cause for retrenching the workmen in question. 6. Appellants contents that the 2nd respondents should have examined in detail the various transactions entered into by the 3rd respondents to ascertain whether the 3rd respondents can financially support the existing workmen. They rely on sub-section (7) of section 25-N of the Act and submit that the enquiry to be made by respondent No. 2 under sub-section (2) is similar to an enquiry under sub-section (7). In our view, however, an enquiry under sub-section (2) has no relation to proceeding contemplated under sub-section (7) of section 25-N. Sub-section (7) applies to a case where at the commencement of the Industrial Disputes (Amendment) Act, 1976 a dispute relating to retrenchment is inter alia pending before a conciliation officer. In such a dispute there should be an allegation that retrenchment is by way of victimisation, in the alternative in such a dispute the appropriate Government should form an opinion that such retrenchment would not be in the interest of Industrial Peace. In these special circumstances the appropriate Government under sub-section (7) has the power to withdraw the dispute from inter alia, the Conciliation Officer. The appropriate Government may by a notification transfer such a dispute to an authority specified in that sub-section for consideration. The decision of such an authority is made final and binding or the parties under that sub-section. 7. An enquiry to be held by the authority so appointed under sub-section (7) is a totally different enquiry from the enquiry to be made by Government for granting or refusing permission under sub-section (2). An enquiry under sub-section (2) cannot be considered as similar to an enquiry under sub-section (7) as contended by the appellants. In our view, at the stage of permission any elaborate judicial or quasi judicial enquiry is not contemplated. The very scheme of section 25-N pracludes such an elaborate enquiry. In the present case the 2nd respondents has taken into account relevant circumstance before granting permission. He has given a fairly detailed reasoning for granting permission to respondents No. 3 to retrench some of the employees as stated in order. The order is in consonance with the provision of sub-section (2).8. The appellants have contended that they have now come across certain document to show some that profits were diverted by the 3rd respondents an allied concern. The 3rd respondents have filed an affidavits denying this allegation by giving a cogent explanation of the document so relied upon by the appellants. We do not see how all these disputes relating to the detailed working of the company and involving a scrutiny of contracts entered into by the Company with third parties in the normal course of its work can be gone into or re-opened by the authorities granting permission under section 25-N(2).9. It should be also be noted that granting of permission under section 25-N does not preclude either the industrial established or the workers from raising a dispute relating to such retrenchment and having it adjudicated upon before an Industrial Tribunal. Under Scheduled III, Item 10 of the said Act Industrial Tribunal has jurisdiction to deal with matters relating to retrenchment of workmen. This jurisdiction is not taken away by reason of the fact that an industrial establishment has obtained permission under section 25-N(2) for retrenchment of workers. Such permission is a condition precedent to retrenchment of workmen. Merits or demerits of the case can be adjudicated upon before the Industrial Tribunal. In view of this alternative remedy available to the appellants also, in our view it is not fit case where we should intervene in the order of 1st February, 1984. 10. Our attention was drawn to a decision of Division Bench of this Court in the case of (Workmen of Mukund Iron and Steel Works Ltd. v. Mukund Iron and Steel Works Ltd. and others)1, reported in (1982)1 L.L.J 140 (to which one of us was party). In that case permission to retrench granted under section 25-N was set aside because the Assistance Labour Commissioner while granting permission did not take into account an extremely relevant fact, namely, that work was available in the establishment for workers who were to be retrenched. The establishment had merely contended that such workmen would be given work only if workmen agreed to give certain quantity production as per agreed norms. Since the decision to grant permission did not take into account this very relevant circumstance the decision was set aside. The question of the nature of enquiry to be held under section 25-N(2) was not considered at all by the Division Bench in that case nor was this question raised before the Division Bench. The judgment therefore, is not much assistance in the present case. | 0[ds]In our view, however, an enquiry under(2) has no relation to proceeding contemplated under) of sectionn (7) applies to a case where at the commencement of the Industrial Disputes (Amendment) Act, 1976 a dispute relating to retrenchment is inter alia pending before a conciliation officer. In such a dispute there should be an allegation that retrenchment is by way of victimisation, in the alternative in such a dispute the appropriate Government should form an opinion that such retrenchment would not be in the interest of Industrial Peace. In these special circumstances the appropriate Government under(7) has the power to withdraw the dispute from inter alia, the Conciliation Officer. The appropriate Government may by a notification transfer such a dispute to an authority specified in thatfor consideration. The decision of such an authority is made final and binding or the parties under that7. An enquiry to be held by the authority so appointed under(7) is a totally different enquiry from the enquiry to be made by Government for granting or refusing permission under(2). An enquiry under(2) cannot be considered as similar to an enquiry under(7) as contended by the appellants. In our view, at the stage of permission any elaborate judicial or quasi judicial enquiry is not contemplated. The very scheme of sectionpracludes such an elaborate enquiry. In the present case the 2nd respondents has taken into account relevant circumstance before granting permission. He has given a fairly detailed reasoning for granting permission to respondents No. 3 to retrench some of the employees as stated in order. The order is in consonance with the provision of(2).8. The appellants have contended that they have now come across certain document to show some that profits were diverted by the 3rd respondents an allied concern. The 3rd respondents have filed an affidavits denying this allegation by giving a cogent explanation of the document so relied upon by the appellants. We do not see how all these disputes relating to the detailed working of the company and involving a scrutiny of contracts entered into by the Company with third parties in the normal course of its work can be gone into orIt should be also be noted that granting of permission under sectiondoes not preclude either the industrial established or the workers from raising a dispute relating to such retrenchment and having it adjudicated upon before an Industrial Tribunal. Under Scheduled III, Item 10 of the said Act Industrial Tribunal has jurisdiction to deal with matters relating to retrenchment of workmen. This jurisdiction is not taken away by reason of the fact that an industrial establishment has obtained permission under sectionfor retrenchment of workers. Such permission is a condition precedent to retrenchment of workmen. Merits or demerits of the case can be adjudicated upon before the Industrial Tribunal. In view of this alternative remedy available to the appellants also, in our view it is not fit case where we should intervene in the order of 1st February, 1984. 10. Our attention was drawn to a decision of Division Bench of this Court in the case of (Workmen of Mukund Iron and Steel Works Ltd. v. Mukund Iron and Steel Works Ltd. and others)1, reported in (1982)1 L.L.J 140 (to which one of us was party). In that case permission to retrench granted under sectionwas set aside because the Assistance Labour Commissioner while granting permission did not take into account an extremely relevant fact, namely, that work was available in the establishment for workers who were to be retrenched. The establishment had merely contended that such workmen would be given work only if workmen agreed to give certain quantity production as per agreed norms. Since the decision to grant permission did not take into account this very relevant circumstance the decision was set aside. The question of the nature of enquiry to be held under sectionwas not considered at all by the Division Bench in that case nor was this question raised before the Division Bench. The judgment therefore, is not much assistance in the present case. | 0 | 2,468 | 752 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
permission or refusal is not communicated by the authority within three months of the notice, the authority shall be deemed to have granted such permission on the expiry of the period of three months. Sub-Section (2) and (3) have to be read together because they prescribe the manner of granting or refusing permission in response to notice given under sub-section (1)(c) of section 25-N. Under sub-section (3) if grant of permission or refuse to grant permission is not communicated within 3 months the Government is deemed to have granted permission. Under sub-section (2) the Government may after making such inquiry as it considers fit grant or refuse such permission. Since any grant or refusal or permission after enquiry has to be done within the period of 3 months, such an enquiry by its very nature cannot be an elaborate enquiry into detailed working of the company in question and assessment of its economic viability and so on. Such a quasi judicial enquiry would probably take much longer than 3 months. The shortness of the period available for enquiry and deeming provisions of sub-section (3) indicate that the enquiry before granting or refusing to grant permission to retrench is a preliminary enquiry. Presumably it should show that prima facie the employer has a reasonable cause for retrenching the workmen in question. 6. Appellants contents that the 2nd respondents should have examined in detail the various transactions entered into by the 3rd respondents to ascertain whether the 3rd respondents can financially support the existing workmen. They rely on sub-section (7) of section 25-N of the Act and submit that the enquiry to be made by respondent No. 2 under sub-section (2) is similar to an enquiry under sub-section (7). In our view, however, an enquiry under sub-section (2) has no relation to proceeding contemplated under sub-section (7) of section 25-N. Sub-section (7) applies to a case where at the commencement of the Industrial Disputes (Amendment) Act, 1976 a dispute relating to retrenchment is inter alia pending before a conciliation officer. In such a dispute there should be an allegation that retrenchment is by way of victimisation, in the alternative in such a dispute the appropriate Government should form an opinion that such retrenchment would not be in the interest of Industrial Peace. In these special circumstances the appropriate Government under sub-section (7) has the power to withdraw the dispute from inter alia, the Conciliation Officer. The appropriate Government may by a notification transfer such a dispute to an authority specified in that sub-section for consideration. The decision of such an authority is made final and binding or the parties under that sub-section. 7. An enquiry to be held by the authority so appointed under sub-section (7) is a totally different enquiry from the enquiry to be made by Government for granting or refusing permission under sub-section (2). An enquiry under sub-section (2) cannot be considered as similar to an enquiry under sub-section (7) as contended by the appellants. In our view, at the stage of permission any elaborate judicial or quasi judicial enquiry is not contemplated. The very scheme of section 25-N pracludes such an elaborate enquiry. In the present case the 2nd respondents has taken into account relevant circumstance before granting permission. He has given a fairly detailed reasoning for granting permission to respondents No. 3 to retrench some of the employees as stated in order. The order is in consonance with the provision of sub-section (2).8. The appellants have contended that they have now come across certain document to show some that profits were diverted by the 3rd respondents an allied concern. The 3rd respondents have filed an affidavits denying this allegation by giving a cogent explanation of the document so relied upon by the appellants. We do not see how all these disputes relating to the detailed working of the company and involving a scrutiny of contracts entered into by the Company with third parties in the normal course of its work can be gone into or re-opened by the authorities granting permission under section 25-N(2).9. It should be also be noted that granting of permission under section 25-N does not preclude either the industrial established or the workers from raising a dispute relating to such retrenchment and having it adjudicated upon before an Industrial Tribunal. Under Scheduled III, Item 10 of the said Act Industrial Tribunal has jurisdiction to deal with matters relating to retrenchment of workmen. This jurisdiction is not taken away by reason of the fact that an industrial establishment has obtained permission under section 25-N(2) for retrenchment of workers. Such permission is a condition precedent to retrenchment of workmen. Merits or demerits of the case can be adjudicated upon before the Industrial Tribunal. In view of this alternative remedy available to the appellants also, in our view it is not fit case where we should intervene in the order of 1st February, 1984. 10. Our attention was drawn to a decision of Division Bench of this Court in the case of (Workmen of Mukund Iron and Steel Works Ltd. v. Mukund Iron and Steel Works Ltd. and others)1, reported in (1982)1 L.L.J 140 (to which one of us was party). In that case permission to retrench granted under section 25-N was set aside because the Assistance Labour Commissioner while granting permission did not take into account an extremely relevant fact, namely, that work was available in the establishment for workers who were to be retrenched. The establishment had merely contended that such workmen would be given work only if workmen agreed to give certain quantity production as per agreed norms. Since the decision to grant permission did not take into account this very relevant circumstance the decision was set aside. The question of the nature of enquiry to be held under section 25-N(2) was not considered at all by the Division Bench in that case nor was this question raised before the Division Bench. The judgment therefore, is not much assistance in the present case.
### Response:
0
### Explanation:
In our view, however, an enquiry under(2) has no relation to proceeding contemplated under) of sectionn (7) applies to a case where at the commencement of the Industrial Disputes (Amendment) Act, 1976 a dispute relating to retrenchment is inter alia pending before a conciliation officer. In such a dispute there should be an allegation that retrenchment is by way of victimisation, in the alternative in such a dispute the appropriate Government should form an opinion that such retrenchment would not be in the interest of Industrial Peace. In these special circumstances the appropriate Government under(7) has the power to withdraw the dispute from inter alia, the Conciliation Officer. The appropriate Government may by a notification transfer such a dispute to an authority specified in thatfor consideration. The decision of such an authority is made final and binding or the parties under that7. An enquiry to be held by the authority so appointed under(7) is a totally different enquiry from the enquiry to be made by Government for granting or refusing permission under(2). An enquiry under(2) cannot be considered as similar to an enquiry under(7) as contended by the appellants. In our view, at the stage of permission any elaborate judicial or quasi judicial enquiry is not contemplated. The very scheme of sectionpracludes such an elaborate enquiry. In the present case the 2nd respondents has taken into account relevant circumstance before granting permission. He has given a fairly detailed reasoning for granting permission to respondents No. 3 to retrench some of the employees as stated in order. The order is in consonance with the provision of(2).8. The appellants have contended that they have now come across certain document to show some that profits were diverted by the 3rd respondents an allied concern. The 3rd respondents have filed an affidavits denying this allegation by giving a cogent explanation of the document so relied upon by the appellants. We do not see how all these disputes relating to the detailed working of the company and involving a scrutiny of contracts entered into by the Company with third parties in the normal course of its work can be gone into orIt should be also be noted that granting of permission under sectiondoes not preclude either the industrial established or the workers from raising a dispute relating to such retrenchment and having it adjudicated upon before an Industrial Tribunal. Under Scheduled III, Item 10 of the said Act Industrial Tribunal has jurisdiction to deal with matters relating to retrenchment of workmen. This jurisdiction is not taken away by reason of the fact that an industrial establishment has obtained permission under sectionfor retrenchment of workers. Such permission is a condition precedent to retrenchment of workmen. Merits or demerits of the case can be adjudicated upon before the Industrial Tribunal. In view of this alternative remedy available to the appellants also, in our view it is not fit case where we should intervene in the order of 1st February, 1984. 10. Our attention was drawn to a decision of Division Bench of this Court in the case of (Workmen of Mukund Iron and Steel Works Ltd. v. Mukund Iron and Steel Works Ltd. and others)1, reported in (1982)1 L.L.J 140 (to which one of us was party). In that case permission to retrench granted under sectionwas set aside because the Assistance Labour Commissioner while granting permission did not take into account an extremely relevant fact, namely, that work was available in the establishment for workers who were to be retrenched. The establishment had merely contended that such workmen would be given work only if workmen agreed to give certain quantity production as per agreed norms. Since the decision to grant permission did not take into account this very relevant circumstance the decision was set aside. The question of the nature of enquiry to be held under sectionwas not considered at all by the Division Bench in that case nor was this question raised before the Division Bench. The judgment therefore, is not much assistance in the present case.
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Savita Vs. Bindar Singh | of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. *** *** *** 18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Vermas judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation. 6. After considering the decisions of this Court in Santosh Devi (supra) as well as Rajesh v. Rajbir Singh (supra), we are of the opinion that it is the duty of the Court to fix a just compensation. At the time of fixing such compensation, the court should not succumb to the niceties or technicalities to grant just compensation in favour of the claimant. It is the duty of the court to equate, as far as possible, the misery on account of the accident with the compensation so that the injured or the dependants should not face the vagaries of life on account of discontinuance of the income earned by the victim. Therefore, it will be the bounden duty of the Tribunal to award just, equitable, fair and reasonable compensation judging the situation prevailing at that point of time with reference to the settled principles on assessment of damages. In doing so, the Tribunal can also ignore the claim made by the claimant in the application for compensation with the prime object to assess the award based on the principle that the award should be just, equitable, fair and reasonable compensation. 7. In the instant case, it appears that the Tribunal and the High Court have also failed to consider the fact-situation of this case, without taking any pragmatic view and further without considering the price-index prevailing at the moment, assessed the compensation ignoring the principle laid down by this Court in the recent decisions (see: Rajesh v. Rajbir Singh (supra) as also Santosh Devi (supra)) and without revisiting the present situation, came to the conclusion and awarded the total compensation for a sum of [pic]4,28,000/-. In our opinion, such award suffers from proper assessment of compensation awarded by the Tribunal, and High Court on the conventional heads, i.e., loss of consortium to the spouse, future prospects of the deceased and further the sum awarded under the head funeral expenses, cannot be said to be a just compensation. In our opinion, there should have been an endeavour on the part of the Tribunal as well as the High Court to consider the inflation factor and further they should have considered the amounts fixed by the court several decades ago on such heads. Accordingly, as has been pointed out by this Court in Rajesh v. Rajbir Singh (supra), we hold that the compensation under the head loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses amounts should have been awarded under such heads, that is, for [pic]1,00,000/- and [pic]25,000/- respectively and we award such compensation under the said heads. So far as the head of salary is concerned, we do not express any opinion since we have found that the appellant could not prove the salary certificate and for such reason, we do not intend to interfere with the opinion expressed by the Tribunal on the established principle of notional income and accordingly, we do not want to disturb the said notional income while calculating the total compensation in favour of the appellant. 8. We have failed to understand why the Tribunal as well as the High Court lost its sight to hold that the victim could have had future prospects with regard to the amounts the victim used to earn during his life-time? Therefore, the notional income also needs to be increased by at least 30% and thereby the claimant is entitled to get the benefit of [pic]900/- being the future prospects; the said amount should be added to the notional income of the victim. Therefore, it appears that the total salary along with future prospects of the victim should have been calculated at [pic] 3,000/- plus [pic] 900/- amounting to [pic] 3,900/- per month. The total deduction on personal expenses, in our opinion, should have been one third of [pic] 3,900/- amounting to [pic] 1,300/-. Therefore, salary after deduction would come to [pic] 2,600/- and the multiplier should be applied at 17, as has been done correctly by the Tribunal after taking into account the age of the victim. In this process, the total amount of compensation to be paid would be [pic] 2,600 x 17 x 12 amounting to [pic]5,30,400/-. 9. We modify and reassess the compensation in accordance with the Calculation Table set out hereunder: CALCULATION TABLE Salary (Since it is not proved sufficiently as per the order of the Tribunal)Rs. 3,000/- per month Future prospects (at the rate of 30% as prayed for) (as per para8)[30% of Rs. 3,000 = Rs. 900/-]Salary is (3,000+ 900) =Rs. 3,900/- Deduction towards personal expenses (as per Schedule II)1/3rd of Rs. 3,900 = 1,300/- Total salary after adding future prospects and deducting personal expensesRs.3,900 – Rs.1,300 = Rs.2,600/- Multiplier i.e. 17 (as per Schedule II and Section166Rs. 2,600 x 17 x 12 =Rs. 5,30,400/- Total amount of compensation(as per para 8)Rs. 5,30,400/- Compensation under the head of loss of consortium (as per para7)Rs. 1,00,000/- Compensation under the head of funeral expense (as per para 7)Rs. 25,000/- Grand TotalRs. 6,55,400/- | 1[ds]6. After considering the decisions of this Court in Santosh Devi (supra) as well as Rajesh v. Rajbir Singh (supra), we are of the opinion that it is the duty of the Court to fix a just compensation. At the time of fixing such compensation, the court should not succumb to the niceties or technicalities to grant just compensation in favour of the claimant. It is the duty of the court to equate, as far as possible, the misery on account of the accident with the compensation so that the injured or the dependants should not face the vagaries of life on account of discontinuance of the income earned by the victim. Therefore, it will be the bounden duty of the Tribunal to award just, equitable, fair and reasonable compensation judging the situation prevailing at that point of time with reference to the settled principles on assessment of damages. In doing so, the Tribunal can also ignore the claim made by the claimant in the application for compensation with the prime object to assess the award based on the principle that the award should be just, equitable, fair and reasonable compensation7. In the instant case, it appears that the Tribunal and the High Court have also failed to consider the fact-situation of this case, without taking any pragmatic view and further without considering the price-index prevailing at the moment, assessed the compensation ignoring the principle laid down by this Court in the recent decisions (see: Rajesh v. Rajbir Singh (supra) as also Santosh Devi (supra)) and without revisiting the present situation, came to the conclusion and awarded the total compensation for a sum of [pic]4,28,000/-. In our opinion, such award suffers from proper assessment of compensation awarded by the Tribunal, and High Court on the conventional heads, i.e., loss of consortium to the spouse, future prospects of the deceased and further the sum awarded under the head funeral expenses, cannot be said to be a just compensation. In our opinion, there should have been an endeavour on the part of the Tribunal as well as the High Court to consider the inflation factor and further they should have considered the amounts fixed by the court several decades ago on such heads. Accordingly, as has been pointed out by this Court in Rajesh v. Rajbir Singh (supra), we hold that the compensation under the head loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses amounts should have been awarded under such heads, that is, for [pic]1,00,000/- and [pic]25,000/- respectively and we award such compensation under the said heads. So far as the head of salary is concerned, we do not express any opinion since we have found that the appellant could not prove the salary certificate and for such reason, we do not intend to interfere with the opinion expressed by the Tribunal on the established principle of notional income and accordingly, we do not want to disturb the said notional income while calculating the total compensation in favour of the appellant8. We have failed to understand why the Tribunal as well as the High Court lost its sight to hold that the victim could have had future prospects with regard to the amounts the victim used to earn during his life-time? Therefore, the notional income also needs to be increased by at least 30% and thereby the claimant is entitled to get the benefit of [pic]900/- being the future prospects; the said amount should be added to the notional income of the victim. Therefore, it appears that the total salary along with future prospects of the victim should have been calculated at [pic] 3,000/- plus [pic] 900/- amounting to [pic] 3,900/- per month. The total deduction on personal expenses, in our opinion, should have been one third of [pic] 3,900/- amounting to [pic] 1,300/-. Therefore, salary after deduction would come to [pic] 2,600/- and the multiplier should be applied at 17, as has been done correctly by the Tribunal after taking into account the age of the victim. In this process, the total amount of compensation to be paid would be [pic] 2,600 x 17 x 12 amounting to [pic]5,30,400/- | 1 | 2,419 | 800 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. *** *** *** 18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Vermas judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation. 6. After considering the decisions of this Court in Santosh Devi (supra) as well as Rajesh v. Rajbir Singh (supra), we are of the opinion that it is the duty of the Court to fix a just compensation. At the time of fixing such compensation, the court should not succumb to the niceties or technicalities to grant just compensation in favour of the claimant. It is the duty of the court to equate, as far as possible, the misery on account of the accident with the compensation so that the injured or the dependants should not face the vagaries of life on account of discontinuance of the income earned by the victim. Therefore, it will be the bounden duty of the Tribunal to award just, equitable, fair and reasonable compensation judging the situation prevailing at that point of time with reference to the settled principles on assessment of damages. In doing so, the Tribunal can also ignore the claim made by the claimant in the application for compensation with the prime object to assess the award based on the principle that the award should be just, equitable, fair and reasonable compensation. 7. In the instant case, it appears that the Tribunal and the High Court have also failed to consider the fact-situation of this case, without taking any pragmatic view and further without considering the price-index prevailing at the moment, assessed the compensation ignoring the principle laid down by this Court in the recent decisions (see: Rajesh v. Rajbir Singh (supra) as also Santosh Devi (supra)) and without revisiting the present situation, came to the conclusion and awarded the total compensation for a sum of [pic]4,28,000/-. In our opinion, such award suffers from proper assessment of compensation awarded by the Tribunal, and High Court on the conventional heads, i.e., loss of consortium to the spouse, future prospects of the deceased and further the sum awarded under the head funeral expenses, cannot be said to be a just compensation. In our opinion, there should have been an endeavour on the part of the Tribunal as well as the High Court to consider the inflation factor and further they should have considered the amounts fixed by the court several decades ago on such heads. Accordingly, as has been pointed out by this Court in Rajesh v. Rajbir Singh (supra), we hold that the compensation under the head loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses amounts should have been awarded under such heads, that is, for [pic]1,00,000/- and [pic]25,000/- respectively and we award such compensation under the said heads. So far as the head of salary is concerned, we do not express any opinion since we have found that the appellant could not prove the salary certificate and for such reason, we do not intend to interfere with the opinion expressed by the Tribunal on the established principle of notional income and accordingly, we do not want to disturb the said notional income while calculating the total compensation in favour of the appellant. 8. We have failed to understand why the Tribunal as well as the High Court lost its sight to hold that the victim could have had future prospects with regard to the amounts the victim used to earn during his life-time? Therefore, the notional income also needs to be increased by at least 30% and thereby the claimant is entitled to get the benefit of [pic]900/- being the future prospects; the said amount should be added to the notional income of the victim. Therefore, it appears that the total salary along with future prospects of the victim should have been calculated at [pic] 3,000/- plus [pic] 900/- amounting to [pic] 3,900/- per month. The total deduction on personal expenses, in our opinion, should have been one third of [pic] 3,900/- amounting to [pic] 1,300/-. Therefore, salary after deduction would come to [pic] 2,600/- and the multiplier should be applied at 17, as has been done correctly by the Tribunal after taking into account the age of the victim. In this process, the total amount of compensation to be paid would be [pic] 2,600 x 17 x 12 amounting to [pic]5,30,400/-. 9. We modify and reassess the compensation in accordance with the Calculation Table set out hereunder: CALCULATION TABLE Salary (Since it is not proved sufficiently as per the order of the Tribunal)Rs. 3,000/- per month Future prospects (at the rate of 30% as prayed for) (as per para8)[30% of Rs. 3,000 = Rs. 900/-]Salary is (3,000+ 900) =Rs. 3,900/- Deduction towards personal expenses (as per Schedule II)1/3rd of Rs. 3,900 = 1,300/- Total salary after adding future prospects and deducting personal expensesRs.3,900 – Rs.1,300 = Rs.2,600/- Multiplier i.e. 17 (as per Schedule II and Section166Rs. 2,600 x 17 x 12 =Rs. 5,30,400/- Total amount of compensation(as per para 8)Rs. 5,30,400/- Compensation under the head of loss of consortium (as per para7)Rs. 1,00,000/- Compensation under the head of funeral expense (as per para 7)Rs. 25,000/- Grand TotalRs. 6,55,400/-
### Response:
1
### Explanation:
6. After considering the decisions of this Court in Santosh Devi (supra) as well as Rajesh v. Rajbir Singh (supra), we are of the opinion that it is the duty of the Court to fix a just compensation. At the time of fixing such compensation, the court should not succumb to the niceties or technicalities to grant just compensation in favour of the claimant. It is the duty of the court to equate, as far as possible, the misery on account of the accident with the compensation so that the injured or the dependants should not face the vagaries of life on account of discontinuance of the income earned by the victim. Therefore, it will be the bounden duty of the Tribunal to award just, equitable, fair and reasonable compensation judging the situation prevailing at that point of time with reference to the settled principles on assessment of damages. In doing so, the Tribunal can also ignore the claim made by the claimant in the application for compensation with the prime object to assess the award based on the principle that the award should be just, equitable, fair and reasonable compensation7. In the instant case, it appears that the Tribunal and the High Court have also failed to consider the fact-situation of this case, without taking any pragmatic view and further without considering the price-index prevailing at the moment, assessed the compensation ignoring the principle laid down by this Court in the recent decisions (see: Rajesh v. Rajbir Singh (supra) as also Santosh Devi (supra)) and without revisiting the present situation, came to the conclusion and awarded the total compensation for a sum of [pic]4,28,000/-. In our opinion, such award suffers from proper assessment of compensation awarded by the Tribunal, and High Court on the conventional heads, i.e., loss of consortium to the spouse, future prospects of the deceased and further the sum awarded under the head funeral expenses, cannot be said to be a just compensation. In our opinion, there should have been an endeavour on the part of the Tribunal as well as the High Court to consider the inflation factor and further they should have considered the amounts fixed by the court several decades ago on such heads. Accordingly, as has been pointed out by this Court in Rajesh v. Rajbir Singh (supra), we hold that the compensation under the head loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses amounts should have been awarded under such heads, that is, for [pic]1,00,000/- and [pic]25,000/- respectively and we award such compensation under the said heads. So far as the head of salary is concerned, we do not express any opinion since we have found that the appellant could not prove the salary certificate and for such reason, we do not intend to interfere with the opinion expressed by the Tribunal on the established principle of notional income and accordingly, we do not want to disturb the said notional income while calculating the total compensation in favour of the appellant8. We have failed to understand why the Tribunal as well as the High Court lost its sight to hold that the victim could have had future prospects with regard to the amounts the victim used to earn during his life-time? Therefore, the notional income also needs to be increased by at least 30% and thereby the claimant is entitled to get the benefit of [pic]900/- being the future prospects; the said amount should be added to the notional income of the victim. Therefore, it appears that the total salary along with future prospects of the victim should have been calculated at [pic] 3,000/- plus [pic] 900/- amounting to [pic] 3,900/- per month. The total deduction on personal expenses, in our opinion, should have been one third of [pic] 3,900/- amounting to [pic] 1,300/-. Therefore, salary after deduction would come to [pic] 2,600/- and the multiplier should be applied at 17, as has been done correctly by the Tribunal after taking into account the age of the victim. In this process, the total amount of compensation to be paid would be [pic] 2,600 x 17 x 12 amounting to [pic]5,30,400/-
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Ishwar Nagar Coop House Building Society Vs. Parma Nand Sharma | contrasted to "become". Under Article 102(1) a person is disqualified for "being chosen as" and also for "being a member of either Houses of parliament" etc. The dichotomy there is between becoming a member and continuing to be a member of parliament. It is therefore, to be concluded that even under the 1962 bye-law No. 5(i) (e) the respondent-1 were disabled from continuing to be members of the society. Issue III 22. The next argument for the learned counsel for the respondent-1 was that the said property was purchased in the name of HUF and not by respondent-1 in his personal capacity. Whereas the learned counsel for the appellant contended that the Rule 25 is applicable to the respondent-1 irrespective of the fact that the said property is purchased in the name of HUF. We have considered these arguments in the light of the Rule 25. Sub-rule (1)(c)(i) of the rule 25 provides an exception in case of persons who are only co-sharers in the joint family property, in that disqualification of membership as laid down in sub-rule (l)(c)(i) shall not be applicable in case of co-sharers of property whose share is less than 66.72 sq. m. (80 yds) of land. In the present case, the said property is admeasuring 1080 yds and there are 3 co-sharers of the property, i.e. respondent-1 and his two children, (after the death of wife) and the share of the respondent-1 would be more than the prescribed limit. In this regard, the aforesaid exception is not applicable to the respondent-1s case. There is one more angle, which was specifically placed before us and requires our consideration. A perpetual lease deed with respect to the land allotted to the appellant society was executed on 06.04.1978 by the President of India through the Delhi Administration. A copy of the said perpetual lease deed executed with the appellant society is placed on record. Our specific attention was drawn to clause No. 5 (a) of the said lease deed, which reads as follows: "5(a). The lease shall sublease within one year from the date of execution of these present, such time and on such premium and yearly rent as may be fixed by the lessor, one residential plot to each of its members who or whose wife/husband or any of his/her dependent relatives including unmarried children does not own, in full or in part, on freehold or leasehold bases, any residential plot or house in the urban areas of Delhi, New Delhi or Delhi cantonment, and who may be approved by the chief commissioner." The appellant society was, therefore, under an obligation not to allot a residential plot to a person, who was owning a property in the city of Delhi. Therefore, as per terms of allotment of the land to the appellant it was obligatory for the society not to allot plots of land to such persons who own any residential property either in their own name or in the name of their family member. When the Hindu Undivided Family of the respondent consists only of his own family members, namely, his wife, son and the daughter and therefore obviously ownership of the said property by the Hindu Undivided Family of the respondent is ownership of property by the family members and consequently the same would clearly fall within the prohibition and bar of allotment as contained in clause No. 5 (a) of the lease deed. Issue IV 23. The last submission made by respondent-1 is that the said property is being used only for the purpose of running a nursing home, i.e., for a commercial and not residential purpose. The learned counsel for the appellant-society refuted the same contending that the nursing home was located only on the ground floor of the property and the other floors are being used for residential purpose and the same appears from the various correspondences and affidavits made by the respondent-1 wherein he has shown the said property as his residence. In light of Rule 25, the action of the appellant-society would be justified if the said property is found to be residential house in the light of documents on record. The mere fact that the respondent-1 has shown in affidavits and correspondences the said property as his address doesnt prove that the property is a residential house as being a doctor running a nursing home, he had to remain invariably in his workplace for very long hours. However, the Annexure P-12 and P-13 are respectively self-assessment property tax forms filled by the respondent-1 with respect to the said property and an objection letter written by the respondent-1 against the assessment notice issued by the Municipal Corporation with respect to the said property. In Annexure P-12, while assessing the tax of the property, the respondent-1 has shown the property as used for residential and self-occupied purpose only. In Annexure P-13, the respondent-1 opposed the assessable value shown in the assessment notice on the ground that the building on the said plot is a new constructed building and is under self-occupation for residence and self professional-medical work only and is a single-unit house. The respondent for the purpose of being member of the appellant-society cannot claim the said property used purely for commercial purpose when he himself claimed the said property being used for residential purpose also. It should also be indicated that the aforesaid information about the nature and status of his property in Kailash Colony were furnished by the respondent under his own declaration and by certifying that the said particulars filled in the form are true and correct to the best of his knowledge. The respondent No. 1 has also appended his signature to the said declaration by signing it on 27/06/2006. These informations are relevant and material to come the conclusions that the aforesaid property in Kailash Colony was also used as a residential property and therefore the contention of the counsel for the respondent no. 1 that it is exclusively a commercial property cannot be accepted. | 1[ds]11. In view of the above position, it may be deduced that the power to frame rules given under s. 97(1) of the Act is not controlled by the list mentioned in sub section (2) and the Lt. Governor can make rules for any of the purposes of the Act. Asociety may be defined as a voluntary association of individuals combined to achieve an improvement in their social and economic conditions through the common ownership and democratic management of the instruments of wealth. (Vide Rows Encyclopedia ofSocieties Law in India, Vol. 2, page 1) Experience has shown that voluntary organizations like cooperative societies are the best system which can suit the needs of poor and weaker sections. The object of asociety is not to earn profits but to enable the members to improve their economic conditions by helping them in their pursuits. Thus, the cooperative societies like the present one which seek to obtain the land at concessional rate from the government and to build houses must necessarily have a limitation in that only members who are in real need of houses should be permitted to become members and to take the benefit of land allotment. In the garb of a cooperative society, a person cannot be permitted to avoid the stress of market prices and take a concessional advantage in obtaining a plot. Thus Rule 25(2) does not in any manner go beyond the ambit of rule making authority given under Section 97(1) of theare of the considered opinion that the aforesaid contention of thecounsel for theis misconceived. Merely because a person who had become a member of the society at a point of time when the disqualification mentioned in Rule 25 was not in existence and because of the said rule would now cease to be a member of the society does not necessarily mean that the said rule is retrospective. "A statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time precedent to its passing". (See Craise on Statute Law. 17th edition page 386). Reference may also be made to Queen v. Vina reported at (1875) 10 Q.B 195 wherein the Statute enacted that every person convicted of felony shall be for ever disqualified from selling spirits by retail. It was held that the disqualification applied to every convicted felon irrespective of whether he was so convicted prior to or after the Act came intoThe most concrete cases wherein laws are made retrospective are those in which the date of commencement is earlier than enactment, or which validate some invalid law, otherwise, every statute affects rights which would have been in existence but for the statute and a statute does not become a retrospective one because a part of the requisition for its action is drawn from a time antecedent to its passing. Applying that to the present case, the conclusion is inescapable, that Rule 25(2) is not retrospective. All that Rule 25(2) does is that it operates in future, though the basis for taking action is the factum acquiring a plot in the past. Thus when by virtue of Rule 25(2), a member is deemed to have ceased to be a member of the society, the cessation operates from April 2, 1973, when the rules came into force.Perusal to abovemakes it clear that on purchasing a house or a plot of land for construction of a house, either in his own name or in name of any of his dependants, disqualifies a member of the society to continue as one. Bye laws of the society regulate the management of the society and govern the relationship between society and members inter se. They are of the nature of Articles of Association of a company registered under the Companies Act. If they are consistent with the Act and Rules, the members are bound by them.w 8(vii) was neither inconsistent with the BombayCooperative Societies Act,under which the appellant society was governed nor was it contrary to DelhiCooperative Societies Act,1972 and the Rules framed thereunder. Therefore, a member of the society who acted in violation of the said bye law was liable to have his or her membership removed from thewas only for the first time on 22.09.10 during the course of oral arguments thecounsel for theappellant raised the said violation as a surprise. On further investigation apart from the fact that the alleged 1962 bye laws were not part of the High Court file and the copy of the bye laws relied upon, it was contended, appears to be fabricated.20. If we accept the above contention ofand keep aside the alleged bye law 8(vii) from our consideration, bye law 5(i)(e) still remains to be considered, the existence of which is also not in doubt. The violation of said bye law 5(i)(e) was also communicated to theby show cause notice dated 24.1.1978 and also raised as a ground in the writ petition before the High Court and in the SLP filed before this Court. The said bye law 5(i)(e) is produced hereinunder:"5(i) Any person shall be eligible to be a member of the society, provided;(e) he or his wife (she or her husband incase of a woman) or any of his/her dependents does not own a dwelling house or a plot for building a house informer refers to the existence of state of affairs in present while the latter refers to the coming into existence of a new state of affairs. It is argued for thethat the 1962No. 5(i)(e) refers only to the eligibility of a person to become a member. On the contrary, the respondents have urged that even a person who is already a member ceases to be eligible to continue as a member if he does not satisfy5(i)(e). That is to say, if a person after becoming a member of the society purchased a dwelling house in Delhi, then he is not eligible to be a member in the sense that he is not eligible to continue to be a member of the society under the saidAs against the contention of theaw 5(i)(e) does not apply to existing members, it may be pointed out that in Article 102(1) of the Constitution also the word "be" is used in the sense of "exist" as contrasted to "become". Under Article 102(1) a person is disqualified for "being chosen as" and also for "being a member of either Houses of parliament" etc. The dichotomy there is between becoming a member and continuing to be a member of parliament. It is therefore, to be concluded that even under the 1962No. 5(i) (e) thewere disabled from continuing to be members of thehave considered these arguments in the light of the Rule 25.(1)(c)(i) of the rule 25 provides an exception in case of persons who are onlyin the joint family property, in that disqualification of membership as laid down in(l)(c)(i) shall not be applicable in case ofof property whose share is less than 66.72 sq. m. (80 yds) of land. In the present case, the said property is admeasuring 1080 yds and there are 3of the property, i.e.and his two children, (after the death of wife) and the share of thewould be more than the prescribed limit. In this regard, the aforesaid exception is not applicable to thecase. There is one more angle, which was specifically placed before us and requires our consideration. A perpetual lease deed with respect to the land allotted to the appellant society was executed on 06.04.1978 by the President of India through the Delhi Administration. A copy of the said perpetual lease deed executed with the appellant society is placed on record. Our specific attention was drawn to clause No. 5 (a) of the said lease deed, which reads asThe lease shall sublease within one year from the date of execution of these present, such time and on such premium and yearly rent as may be fixed by the lessor, one residential plot to each of its members who or whose wife/husband or any of his/her dependent relatives including unmarried children does not own, in full or in part, on freehold or leasehold bases, any residential plot or house in the urban areas of Delhi, New Delhi or Delhi cantonment, and who may be approved by the chiefappellant society was, therefore, under an obligation not to allot a residential plot to a person, who was owning a property in the city of Delhi. Therefore, as per terms of allotment of the land to the appellant it was obligatory for the society not to allot plots of land to such persons who own any residential property either in their own name or in the name of their family member. When the Hindu Undivided Family of the respondent consists only of his own family members, namely, his wife, son and the daughter and therefore obviously ownership of the said property by the Hindu Undivided Family of the respondent is ownership of property by the family members and consequently the same would clearly fall within the prohibition and bar of allotment as contained in clause No. 5 (a) of the leaselight of Rule 25, the action of thewould be justified if the said property is found to be residential house in the light of documents on record. The mere fact that thehas shown in affidavits and correspondences the said property as his address doesnt prove that the property is a residential house as being a doctor running a nursing home, he had to remain invariably in his workplace for very long hours. However, the Annexure13 are respectivelyproperty tax forms filled by thewith respect to the said property and an objection letter written by theagainst the assessment notice issued by the Municipal Corporation with respect to the said property. In Annexurewhile assessing the tax of the property, thehas shown the property as used for residential andpurpose only. In Annexureopposed the assessable value shown in the assessment notice on the ground that the building on the said plot is a new constructed building and is underfor residence and selfwork only and is ahouse. The respondent for the purpose of being member of thecannot claim the said property used purely for commercial purpose when he himself claimed the said property being used for residential purpose also. It should also be indicated that the aforesaid information about the nature and status of his property in Kailash Colony were furnished by the respondent under his own declaration and by certifying that the said particulars filled in the form are true and correct to the best of his knowledge. The respondent No. 1 has also appended his signature to the said declaration by signing it on 27/06/2006. These informations are relevant and material to come the conclusions that the aforesaid property in Kailash Colony was also used as a residential property and therefore the contention of thecounsel for therespondent no. 1 that it is exclusively a commercial property cannot be accepted. | 1 | 6,381 | 2,074 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
contrasted to "become". Under Article 102(1) a person is disqualified for "being chosen as" and also for "being a member of either Houses of parliament" etc. The dichotomy there is between becoming a member and continuing to be a member of parliament. It is therefore, to be concluded that even under the 1962 bye-law No. 5(i) (e) the respondent-1 were disabled from continuing to be members of the society. Issue III 22. The next argument for the learned counsel for the respondent-1 was that the said property was purchased in the name of HUF and not by respondent-1 in his personal capacity. Whereas the learned counsel for the appellant contended that the Rule 25 is applicable to the respondent-1 irrespective of the fact that the said property is purchased in the name of HUF. We have considered these arguments in the light of the Rule 25. Sub-rule (1)(c)(i) of the rule 25 provides an exception in case of persons who are only co-sharers in the joint family property, in that disqualification of membership as laid down in sub-rule (l)(c)(i) shall not be applicable in case of co-sharers of property whose share is less than 66.72 sq. m. (80 yds) of land. In the present case, the said property is admeasuring 1080 yds and there are 3 co-sharers of the property, i.e. respondent-1 and his two children, (after the death of wife) and the share of the respondent-1 would be more than the prescribed limit. In this regard, the aforesaid exception is not applicable to the respondent-1s case. There is one more angle, which was specifically placed before us and requires our consideration. A perpetual lease deed with respect to the land allotted to the appellant society was executed on 06.04.1978 by the President of India through the Delhi Administration. A copy of the said perpetual lease deed executed with the appellant society is placed on record. Our specific attention was drawn to clause No. 5 (a) of the said lease deed, which reads as follows: "5(a). The lease shall sublease within one year from the date of execution of these present, such time and on such premium and yearly rent as may be fixed by the lessor, one residential plot to each of its members who or whose wife/husband or any of his/her dependent relatives including unmarried children does not own, in full or in part, on freehold or leasehold bases, any residential plot or house in the urban areas of Delhi, New Delhi or Delhi cantonment, and who may be approved by the chief commissioner." The appellant society was, therefore, under an obligation not to allot a residential plot to a person, who was owning a property in the city of Delhi. Therefore, as per terms of allotment of the land to the appellant it was obligatory for the society not to allot plots of land to such persons who own any residential property either in their own name or in the name of their family member. When the Hindu Undivided Family of the respondent consists only of his own family members, namely, his wife, son and the daughter and therefore obviously ownership of the said property by the Hindu Undivided Family of the respondent is ownership of property by the family members and consequently the same would clearly fall within the prohibition and bar of allotment as contained in clause No. 5 (a) of the lease deed. Issue IV 23. The last submission made by respondent-1 is that the said property is being used only for the purpose of running a nursing home, i.e., for a commercial and not residential purpose. The learned counsel for the appellant-society refuted the same contending that the nursing home was located only on the ground floor of the property and the other floors are being used for residential purpose and the same appears from the various correspondences and affidavits made by the respondent-1 wherein he has shown the said property as his residence. In light of Rule 25, the action of the appellant-society would be justified if the said property is found to be residential house in the light of documents on record. The mere fact that the respondent-1 has shown in affidavits and correspondences the said property as his address doesnt prove that the property is a residential house as being a doctor running a nursing home, he had to remain invariably in his workplace for very long hours. However, the Annexure P-12 and P-13 are respectively self-assessment property tax forms filled by the respondent-1 with respect to the said property and an objection letter written by the respondent-1 against the assessment notice issued by the Municipal Corporation with respect to the said property. In Annexure P-12, while assessing the tax of the property, the respondent-1 has shown the property as used for residential and self-occupied purpose only. In Annexure P-13, the respondent-1 opposed the assessable value shown in the assessment notice on the ground that the building on the said plot is a new constructed building and is under self-occupation for residence and self professional-medical work only and is a single-unit house. The respondent for the purpose of being member of the appellant-society cannot claim the said property used purely for commercial purpose when he himself claimed the said property being used for residential purpose also. It should also be indicated that the aforesaid information about the nature and status of his property in Kailash Colony were furnished by the respondent under his own declaration and by certifying that the said particulars filled in the form are true and correct to the best of his knowledge. The respondent No. 1 has also appended his signature to the said declaration by signing it on 27/06/2006. These informations are relevant and material to come the conclusions that the aforesaid property in Kailash Colony was also used as a residential property and therefore the contention of the counsel for the respondent no. 1 that it is exclusively a commercial property cannot be accepted.
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High Court and in the SLP filed before this Court. The said bye law 5(i)(e) is produced hereinunder:"5(i) Any person shall be eligible to be a member of the society, provided;(e) he or his wife (she or her husband incase of a woman) or any of his/her dependents does not own a dwelling house or a plot for building a house informer refers to the existence of state of affairs in present while the latter refers to the coming into existence of a new state of affairs. It is argued for thethat the 1962No. 5(i)(e) refers only to the eligibility of a person to become a member. On the contrary, the respondents have urged that even a person who is already a member ceases to be eligible to continue as a member if he does not satisfy5(i)(e). That is to say, if a person after becoming a member of the society purchased a dwelling house in Delhi, then he is not eligible to be a member in the sense that he is not eligible to continue to be a member of the society under the saidAs against the contention of theaw 5(i)(e) does not apply to existing members, it may be pointed out that in Article 102(1) of the Constitution also the word "be" is used in the sense of "exist" as contrasted to "become". Under Article 102(1) a person is disqualified for "being chosen as" and also for "being a member of either Houses of parliament" etc. The dichotomy there is between becoming a member and continuing to be a member of parliament. It is therefore, to be concluded that even under the 1962No. 5(i) (e) thewere disabled from continuing to be members of thehave considered these arguments in the light of the Rule 25.(1)(c)(i) of the rule 25 provides an exception in case of persons who are onlyin the joint family property, in that disqualification of membership as laid down in(l)(c)(i) shall not be applicable in case ofof property whose share is less than 66.72 sq. m. (80 yds) of land. In the present case, the said property is admeasuring 1080 yds and there are 3of the property, i.e.and his two children, (after the death of wife) and the share of thewould be more than the prescribed limit. In this regard, the aforesaid exception is not applicable to thecase. There is one more angle, which was specifically placed before us and requires our consideration. A perpetual lease deed with respect to the land allotted to the appellant society was executed on 06.04.1978 by the President of India through the Delhi Administration. A copy of the said perpetual lease deed executed with the appellant society is placed on record. Our specific attention was drawn to clause No. 5 (a) of the said lease deed, which reads asThe lease shall sublease within one year from the date of execution of these present, such time and on such premium and yearly rent as may be fixed by the lessor, one residential plot to each of its members who or whose wife/husband or any of his/her dependent relatives including unmarried children does not own, in full or in part, on freehold or leasehold bases, any residential plot or house in the urban areas of Delhi, New Delhi or Delhi cantonment, and who may be approved by the chiefappellant society was, therefore, under an obligation not to allot a residential plot to a person, who was owning a property in the city of Delhi. Therefore, as per terms of allotment of the land to the appellant it was obligatory for the society not to allot plots of land to such persons who own any residential property either in their own name or in the name of their family member. When the Hindu Undivided Family of the respondent consists only of his own family members, namely, his wife, son and the daughter and therefore obviously ownership of the said property by the Hindu Undivided Family of the respondent is ownership of property by the family members and consequently the same would clearly fall within the prohibition and bar of allotment as contained in clause No. 5 (a) of the leaselight of Rule 25, the action of thewould be justified if the said property is found to be residential house in the light of documents on record. The mere fact that thehas shown in affidavits and correspondences the said property as his address doesnt prove that the property is a residential house as being a doctor running a nursing home, he had to remain invariably in his workplace for very long hours. However, the Annexure13 are respectivelyproperty tax forms filled by thewith respect to the said property and an objection letter written by theagainst the assessment notice issued by the Municipal Corporation with respect to the said property. In Annexurewhile assessing the tax of the property, thehas shown the property as used for residential andpurpose only. In Annexureopposed the assessable value shown in the assessment notice on the ground that the building on the said plot is a new constructed building and is underfor residence and selfwork only and is ahouse. The respondent for the purpose of being member of thecannot claim the said property used purely for commercial purpose when he himself claimed the said property being used for residential purpose also. It should also be indicated that the aforesaid information about the nature and status of his property in Kailash Colony were furnished by the respondent under his own declaration and by certifying that the said particulars filled in the form are true and correct to the best of his knowledge. The respondent No. 1 has also appended his signature to the said declaration by signing it on 27/06/2006. These informations are relevant and material to come the conclusions that the aforesaid property in Kailash Colony was also used as a residential property and therefore the contention of thecounsel for therespondent no. 1 that it is exclusively a commercial property cannot be accepted.
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Eureka Forbes Limited Vs. Allahabad Bank | its order dated 28th December, 2006 wherein it passed the order for refund of the amount. The concerned quarters in the Bank also failed to act despite the advertisement for sale of the hypothecated material given by the appellant on 12th March, 1988, whereafter the machines like CTC is said to have been sold at a throwaway price. All these facts indicate definite negligence and callousness on the part of the concerned quarters. The legislative object of expeditious recovery of all public dues and due protection of security available with the Bank to ensure pre-payments of debts cannot be achieved when the officers/officials of the Bank act in such a callous manner. There is a public duty upon all such officers/officials to act fairly, transparently and with sense of responsibility to ensure recovery of public dues. Even, an inaction on the part of the public servant can lead to a failure of public duty and can jeopardize the interest of the State or its instrumentality. 43. In our considered opinion, the scheme of the Recovery Act and language of its various provisions imposes an obligation upon the Banks to ensure a proper and expeditious recovery of its dues. In the present case, there is certainly ex facie failure of statutory obligation on the part of the Bank and its officers/officials. In the entire record before us, there is no explanation much less any reasonable explanation as to why effective steps were not taken and why the interest of the Bank was permitted to be jeopardized. The concept of public accountability and performance is applicable to the present case as well. These are instrumentalities of the State and thus all administrative norms and principles of fair performance are applicable to them with equal force as they are to the Government department, if not with a greater rigor. The well established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office. In the case of State of Bihar v. Subhash Singh [ (1997) 4 SCC 430 ], this Court, in exercise of the powers of judicial review stated that, the doctrine of full faith and credit applies to the acts done by officers in the hierarchy of the State. They have to faithfully discharge their duties to elongate public purpose.44. Inaction, arbitrary action or irresponsible action would normally result in dual hardship. Firstly, it jeopardizes the interest of the Bank and public funds are wasted and secondly, it even affects the borrowers interest adversely provided such person was acting bonafide. Both these adverse consequences can easily be avoided by the authorities concerned by timely and coordinated action. The authorities are required to have a more practical and pragmatic approach to provide solution to such matters. The concept of public accountability and performance of functions takes in its ambit proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State instrumentalities and/or by the financial institutions. In the case of Centre for Public Interest Litigation & Anr. v. Union of India & Anr. [(2005) 8 SCC 202] , this Court declared the dictum that State actions causing loss are actionable under public law and this is as a result of innovation to a new tool with the court, which are the protectors of civil liberty of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action even in the case of appointment, which essentially must not lack bonafide was enforced by the Court. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable both for their inaction and irresponsible actions. What ought to have been done, if not done, responsibility should be fixed on the erring officers then alone the real public purpose of an answerable administration would be satisfied. 45. The doctrine of full faith and credit applies to the acts done by the officers and presumptive evidence of regularity of official acts done or performed, is apposite in faithful discharge of duties to elongate public purpose and to be in accordance with the procedure prescribed. It is known fact that, in transactions of the Government business, none would own personal responsibility and decisions are leisurely taken at various levels (Refer : State of Andhra Pradesh v. Food Corporation of India [(2004) 13 SCC 53]. Principle of public accountability is applicable to such officers/officials with all its vigour. Greater the power to decide, higher is the responsibility to be just and fair. The dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, but are ex facie discriminatory. The adverse impact of lack of probity in discharge of public duties can result in varied defects not only in the decision making process but in the decision as well. Every public officer is accountable for its decision and actions to the public in the larger interest and to the State administration in its governance. It needs to be seen in the facts and circumstances of the present case, why and how the interest of the Bank has been jeopardized, in what circumstances the loan was sanctioned and disbursed despite some glaring defects having been exposed in the appraisal report. Significant element of discretion is vested in the officers/officials of the Bank while sanctioning and disbursing the loans but this discretion is circumscribed by the inbuilt commercial principles/restrictions as well as that such decisions should be free from arbitrariness, unreasonableness and should protect the interest of the Bank in all events. We are neither competent nor do we wish to venture to examine this aspect, it is for the appropriate authorities in the Bank to examine the matter from all quarters and then to take appropriate action against the erring officers/officials involved in the present case, that too, in accordance with law. | 1[ds]We have already noticed that owing to the sale of goods, complete knowledge, that the goods were hypothecated to the Bank is attributable to the appellant and hence, they could not have sold the said goods without permission of the Bank. Admittedly nothing of this kind was done and the Bank was kept inis obvious from the facts appearing on record that the loan has been sanctioned in a most casual and undesirable manner without even verifying the basic securities of respondent Nos. 2 & 3.From the above stated documentary evidence, it is clear that the parties had the knowledge of the fact that respondent nos. 2 and 3 enjoyed the financial assistance from the Bank and the goods wereven as per the statement of respondent nos. 2 and 3, the appellant sold the hypothecated goods with complete knowledge. This included hypothecated stock worth Rs. 7,00,000/-, lathe machine of value of Rs. 1,15,000/-, in addition to CTC machine and other spares.18. The goods in question, therefore, have been disposed off by the appellant either in collusion with respondent nos. 2 and 3 or at its own but with the knowledge that the goods were hypothecated to the Bank. Thus, to that extent, the liability of the appellant cannot beplain reading of the Section suggests that legislature has used a general expression in contra distinction to specific, restricted or limited expression. This obviously means that, the legislature intended to give wider meaning to the provisions. Larger area of jurisdiction was intended to be covered under this provision so as to ensure attainment of the legislative object, i.e. expeditious recovery and providing provisions for taking such measures which would prevent the wastage of securities available with the banks and financialwe fail to understand as to what advantage the learned counsel appearing for the appellant wishes to draw from this judgment and secondly, this judgment has clearly returned the finding, even on the facts of that case, that application under the provisions of the Recovery Act was maintainable within the scope of Section 2 (g) of thethe case in hand, there cannot be any dispute that the expression "debt" has to be given the widest amplitude to mean any liability which is alleged as due from any person by a bank during the course of any business activity undertaken by the bank either in cash or otherwise, whether secured or unsecured, whether payable under a decree or order of any court or otherwise and legally recoverable on the date of the application. In ascertaining the question whether any particular claim of any bank or financial institution would come within the purview of the tribunal created under the Act, it is imperative that the entire averments made by the plaintiff in the plaint be looked into and them find out whether notwithstanding the specially-created tribunal having been constituted, the averments are such that it is possible to hold that the jurisdiction of such a tribunal is ousted. With the aforesaid principle in mind, on examining the averments made in the plaint, we have no hesitation to come to the conclusion that the claim in question made by the plaintiff is essentially one for recovery of a debt due to it from the defendants and, therefore, is the Tribunal which has the exclusive jurisdiction to decide the dispute and not the ordinary civil court.As is obvious from the above recorded findings, the Court while referring to Section 2 (g), 17(1) and 31 (1) of the Recovery Act, observed that jurisdiction of the Civil Court was barred under the provisions of the Act and the suits or proceedings shall transfer to the Tribunal upon coming into force of the Recovery Act. The Court was primarilyhe matters being transferred from Civil Courts to Tribunal, still while referring to the provisions of Section 2 (g), held that the claim of the Bank was covered under the provisions of the Act. The suit, as instituted in the year 1991, had claimed various relief including the claim for damages. The objection raised was that, there was undetermined amount and other relief could not be referred to the Tribunal for adjudication. The suit was subsequently transferred to the Tribunal under the provisions of the Act and the Court while giving wide meaning to the expression `debt, clearly held that, this expression was of liberal amplitude and there was occasion for the Court to grant a restricted meaning. Thus, in our view, even the case of United Bank of India (supra) no way supports the submissions made on behalf of the appellant.36. On the plain analysis of the above stated judgment of this Court, it is clear that the word `debt under Section 2 (g) of the Recovery Act is incapable of being given a restricted or narrow meaning. The legislature has used general terms which must be given appropriate plain and simple meaning. There is no occasion for the Court to restrict the meaning of the word `any liability, `any person and particularly the words `in cash or otherwise. Under Section 2 (g), a claim has to be raised by the Bank against any person which is due to Bank on account of/in the course of any business activity undertaken by the Bank. In the present case, Bank had admittedly granted financial assistance to respondent nos. 2 and 3, who in turn had hypothecated the goods, plants and machinery in favour of the Bank. There cannot be any dispute before us that the goods in question have been sold by the appellant without the consent of the Bank. Respondent nos. 2 and 3 have hardly raised any dispute and resistance, to the claim of the Bank. In fact, even before this Court there is no representation on their behalf. The documentary and oral evidence on record clearly established that the Bank has raised a financial claim upon the principal debtor, as well as upon the person who had intermeddled and/or at least dealt with the charged goods without any authority in law. Not only this, the appellant had sold the hypothecated goods and stocks by public auction, despite the fact the appellant had due knowledge of the fact that the goods were charged in favour of the Bank. Another aspect of this case which required to be considered by this Court is, what was intended to be suppressed by the legislature by enacting the Recovery Act, 1993 and thereafter, by amending various provisions, including Section 2(g) in the year 2000. Obviously, the mischief which was intended to be controlled and/or prevention of wastage of securities provided to the Bank, was the main consideration for such enactment. The purpose was also to prevent wrong doers from taking advantage of their wrong/mistakes, whether permissible in law or otherwise. These preventive measures are required to bere and purposefully in accordance with law to ensure that the mischief, if not entirely extinguished, is curbed.Maxim Nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations. In the present case Respondent Nos. 2 & 3 and the appellant have acted together while disposing off the hypothecated goods, and now, they cannot be permitted to turn back to argue, that since the goods have been sold, liability cannot be fastened upon respondent Nos. 2 & 3 and in any case on theare not impressed by this argument. Firstly, the judgment of the Gujarat High court is entirely on different facts and in that case an employee of the Bank had misappropriated the amount of the Bank, the Bank had instituted an application under the provisions of the Recovery Act. Rightly so it was held by the High Court, that it was not a `debt within the meaning of Section 2 (g) and, therefore, could not be tried before the Tribunal. We may state another illustration to demonstrate the case where the Tribunal may not have jurisdiction. Some persons commit a theft in the Bank and take away the money and/or the goods hypothecated to the Bank or the goods in the custody of the Bank. Upon Banks lodging a first information report (FIR) to the police, those persons are traced, arrested and tried in accordance with law for theft. In such a case, the Tribunal may not have jurisdiction to entertain and decide an application for recovery of money or value of goods in terms of Section 17 of the Recovery Act. That is neither the case here nor in any of the judgments which have been relied upon by the parties before us, except in the case of Gujarat High Court. In the case in hand, the goods were hypothecated to the Bank and the appellant admittedly had knowledge prior to the sale of the goods, that they were hypothecated to the Bank. If the contention of the appellant is accepted, it will amount to giving advantage or premium to the wrong doers. It would also further perpetuate the mischief intended to be suppressed by the enactment. This could completely defeat the very object and purpose of the Act. A party which had pledged or mortgaged properties in favour of the Bank, then would transfer such properties in favour of a third party. In the event, the Bank takes action under the provisions of the Recovery Act, they would take the objection like the present appellant. This would tantamount to travesty of justice and would frustrate the very legislative object and intent behind the provisions of the Recovery Act. Therefore, such an approach or interpretation would be impermissible.39. We have already noticed that the legislature has not used words of a restrictive or definite nature. It has intentionally made use of the expressions which are quite general and can be construed widely in their common parlance. There is no occasion for this Court to read the word other than the one intended by the legislature in the provisions of Section 2 (g) of the Recovery Act. Wherever the legislature requires, it uses the expressions of definite connotations and consequences, for example, in the Interest Act, 1978, the word `debt has been defined under Section 2(c) of that Act by using specific terms of restricted character. It means `any liability for an `ascertained sum of money and includes a debt payable in any kind but does not include a `judgment debt. In this definition, the `ascertained sum obviously means a sum which has been determined under any methods of the adjudicative process while, on the other hand, the expression `payable in kind is a general expression, again the excluding clause in relation to `judgment debt isis not the language or the purport of Section 2 (g) of the Recovery Act.This contention of appellant needs to be noticed only for being rejected. In our detailed discussion above, we have clearly held that, the claim raised by the Bank falls well within the ambit and scope of Section 2 (g) of the Recovery Act and the jurisdiction of the Tribunal cannot be ousted on this ground.41. Thus, in our opinion, the provisions of Section 2 (g) have to be construed, so as to give it liberal meaning. The general expressions used in this provision will have to be understood generally. Neither there is scope to hold nor is the legislative intent that these provisions should be given a narrower or a restricted meaning. In our considered view, the claim of the Bank relatable to the hypothecated goods was well within the jurisdiction of the Tribunal exercising its power under Section 17 of the Recovery Act.In our considered opinion, the scheme of the Recovery Act and language of its various provisions imposes an obligation upon the Banks to ensure a proper and expeditious recovery of its dues. In the present case, there is certainly ex facie failure of statutory obligation on the part of the Bank and its officers/officials. In the entire record before us, there is no explanation much less any reasonable explanation as to why effective steps were not taken and why the interest of the Bank was permitted to be jeopardized. The concept of public accountability and performance is applicable to the present case as well. These are instrumentalities of the State and thus all administrative norms and principles of fair performance are applicable to them with equal force as they are to the Government department, if not with a greater rigor. The well established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office. In the case of State of Bihar v. Subhash Singh [ (1997) 4 SCC 430 ], this Court, in exercise of the powers of judicial review stated that, the doctrine of full faith and credit applies to the acts done by officers in the hierarchy of the State. They have to faithfully discharge their duties to elongate public purpose.44. Inaction, arbitrary action or irresponsible action would normally result in dual hardship. Firstly, it jeopardizes the interest of the Bank and public funds are wasted and secondly, it even affects the borrowers interest adversely provided such person was acting bonafide. Both these adverse consequences can easily be avoided by the authorities concerned by timely and coordinated action. The authorities are required to have a more practical and pragmatic approach to provide solution to such matters. The concept of public accountability and performance of functions takes in its ambit proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State instrumentalities and/or by the financialof public accountability is applicable to such officers/officials with all its vigour. Greater the power to decide, higher is the responsibility to be just and fair. The dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, but are ex facie discriminatory. The adverse impact of lack of probity in discharge of public duties can result in varied defects not only in the decision making process but in the decision as well. Every public officer is accountable for its decision and actions to the public in the larger interest and to the State administration in its governance. It needs to be seen in the facts and circumstances of the present case, why and how the interest of the Bank has been jeopardized, in what circumstances the loan was sanctioned and disbursed despite some glaring defects having been exposed in the appraisal report. Significant element of discretion is vested in the officers/officials of the Bank while sanctioning and disbursing the loans but this discretion is circumscribed by the inbuilt commercial principles/restrictions as well as that such decisions should be free from arbitrariness, unreasonableness and should protect the interest of the Bank in all events. We are neither competent nor do we wish to venture to examine this aspect, it is for the appropriate authorities in the Bank to examine the matter from all quarters and then to take appropriate action against the erring officers/officials involved in the present case, that too, in accordance with law. | 1 | 13,395 | 2,797 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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its order dated 28th December, 2006 wherein it passed the order for refund of the amount. The concerned quarters in the Bank also failed to act despite the advertisement for sale of the hypothecated material given by the appellant on 12th March, 1988, whereafter the machines like CTC is said to have been sold at a throwaway price. All these facts indicate definite negligence and callousness on the part of the concerned quarters. The legislative object of expeditious recovery of all public dues and due protection of security available with the Bank to ensure pre-payments of debts cannot be achieved when the officers/officials of the Bank act in such a callous manner. There is a public duty upon all such officers/officials to act fairly, transparently and with sense of responsibility to ensure recovery of public dues. Even, an inaction on the part of the public servant can lead to a failure of public duty and can jeopardize the interest of the State or its instrumentality. 43. In our considered opinion, the scheme of the Recovery Act and language of its various provisions imposes an obligation upon the Banks to ensure a proper and expeditious recovery of its dues. In the present case, there is certainly ex facie failure of statutory obligation on the part of the Bank and its officers/officials. In the entire record before us, there is no explanation much less any reasonable explanation as to why effective steps were not taken and why the interest of the Bank was permitted to be jeopardized. The concept of public accountability and performance is applicable to the present case as well. These are instrumentalities of the State and thus all administrative norms and principles of fair performance are applicable to them with equal force as they are to the Government department, if not with a greater rigor. The well established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office. In the case of State of Bihar v. Subhash Singh [ (1997) 4 SCC 430 ], this Court, in exercise of the powers of judicial review stated that, the doctrine of full faith and credit applies to the acts done by officers in the hierarchy of the State. They have to faithfully discharge their duties to elongate public purpose.44. Inaction, arbitrary action or irresponsible action would normally result in dual hardship. Firstly, it jeopardizes the interest of the Bank and public funds are wasted and secondly, it even affects the borrowers interest adversely provided such person was acting bonafide. Both these adverse consequences can easily be avoided by the authorities concerned by timely and coordinated action. The authorities are required to have a more practical and pragmatic approach to provide solution to such matters. The concept of public accountability and performance of functions takes in its ambit proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State instrumentalities and/or by the financial institutions. In the case of Centre for Public Interest Litigation & Anr. v. Union of India & Anr. [(2005) 8 SCC 202] , this Court declared the dictum that State actions causing loss are actionable under public law and this is as a result of innovation to a new tool with the court, which are the protectors of civil liberty of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action even in the case of appointment, which essentially must not lack bonafide was enforced by the Court. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable both for their inaction and irresponsible actions. What ought to have been done, if not done, responsibility should be fixed on the erring officers then alone the real public purpose of an answerable administration would be satisfied. 45. The doctrine of full faith and credit applies to the acts done by the officers and presumptive evidence of regularity of official acts done or performed, is apposite in faithful discharge of duties to elongate public purpose and to be in accordance with the procedure prescribed. It is known fact that, in transactions of the Government business, none would own personal responsibility and decisions are leisurely taken at various levels (Refer : State of Andhra Pradesh v. Food Corporation of India [(2004) 13 SCC 53]. Principle of public accountability is applicable to such officers/officials with all its vigour. Greater the power to decide, higher is the responsibility to be just and fair. The dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, but are ex facie discriminatory. The adverse impact of lack of probity in discharge of public duties can result in varied defects not only in the decision making process but in the decision as well. Every public officer is accountable for its decision and actions to the public in the larger interest and to the State administration in its governance. It needs to be seen in the facts and circumstances of the present case, why and how the interest of the Bank has been jeopardized, in what circumstances the loan was sanctioned and disbursed despite some glaring defects having been exposed in the appraisal report. Significant element of discretion is vested in the officers/officials of the Bank while sanctioning and disbursing the loans but this discretion is circumscribed by the inbuilt commercial principles/restrictions as well as that such decisions should be free from arbitrariness, unreasonableness and should protect the interest of the Bank in all events. We are neither competent nor do we wish to venture to examine this aspect, it is for the appropriate authorities in the Bank to examine the matter from all quarters and then to take appropriate action against the erring officers/officials involved in the present case, that too, in accordance with law.
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which had pledged or mortgaged properties in favour of the Bank, then would transfer such properties in favour of a third party. In the event, the Bank takes action under the provisions of the Recovery Act, they would take the objection like the present appellant. This would tantamount to travesty of justice and would frustrate the very legislative object and intent behind the provisions of the Recovery Act. Therefore, such an approach or interpretation would be impermissible.39. We have already noticed that the legislature has not used words of a restrictive or definite nature. It has intentionally made use of the expressions which are quite general and can be construed widely in their common parlance. There is no occasion for this Court to read the word other than the one intended by the legislature in the provisions of Section 2 (g) of the Recovery Act. Wherever the legislature requires, it uses the expressions of definite connotations and consequences, for example, in the Interest Act, 1978, the word `debt has been defined under Section 2(c) of that Act by using specific terms of restricted character. It means `any liability for an `ascertained sum of money and includes a debt payable in any kind but does not include a `judgment debt. In this definition, the `ascertained sum obviously means a sum which has been determined under any methods of the adjudicative process while, on the other hand, the expression `payable in kind is a general expression, again the excluding clause in relation to `judgment debt isis not the language or the purport of Section 2 (g) of the Recovery Act.This contention of appellant needs to be noticed only for being rejected. In our detailed discussion above, we have clearly held that, the claim raised by the Bank falls well within the ambit and scope of Section 2 (g) of the Recovery Act and the jurisdiction of the Tribunal cannot be ousted on this ground.41. Thus, in our opinion, the provisions of Section 2 (g) have to be construed, so as to give it liberal meaning. The general expressions used in this provision will have to be understood generally. Neither there is scope to hold nor is the legislative intent that these provisions should be given a narrower or a restricted meaning. In our considered view, the claim of the Bank relatable to the hypothecated goods was well within the jurisdiction of the Tribunal exercising its power under Section 17 of the Recovery Act.In our considered opinion, the scheme of the Recovery Act and language of its various provisions imposes an obligation upon the Banks to ensure a proper and expeditious recovery of its dues. In the present case, there is certainly ex facie failure of statutory obligation on the part of the Bank and its officers/officials. In the entire record before us, there is no explanation much less any reasonable explanation as to why effective steps were not taken and why the interest of the Bank was permitted to be jeopardized. The concept of public accountability and performance is applicable to the present case as well. These are instrumentalities of the State and thus all administrative norms and principles of fair performance are applicable to them with equal force as they are to the Government department, if not with a greater rigor. The well established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office. In the case of State of Bihar v. Subhash Singh [ (1997) 4 SCC 430 ], this Court, in exercise of the powers of judicial review stated that, the doctrine of full faith and credit applies to the acts done by officers in the hierarchy of the State. They have to faithfully discharge their duties to elongate public purpose.44. Inaction, arbitrary action or irresponsible action would normally result in dual hardship. Firstly, it jeopardizes the interest of the Bank and public funds are wasted and secondly, it even affects the borrowers interest adversely provided such person was acting bonafide. Both these adverse consequences can easily be avoided by the authorities concerned by timely and coordinated action. The authorities are required to have a more practical and pragmatic approach to provide solution to such matters. The concept of public accountability and performance of functions takes in its ambit proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State instrumentalities and/or by the financialof public accountability is applicable to such officers/officials with all its vigour. Greater the power to decide, higher is the responsibility to be just and fair. The dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, but are ex facie discriminatory. The adverse impact of lack of probity in discharge of public duties can result in varied defects not only in the decision making process but in the decision as well. Every public officer is accountable for its decision and actions to the public in the larger interest and to the State administration in its governance. It needs to be seen in the facts and circumstances of the present case, why and how the interest of the Bank has been jeopardized, in what circumstances the loan was sanctioned and disbursed despite some glaring defects having been exposed in the appraisal report. Significant element of discretion is vested in the officers/officials of the Bank while sanctioning and disbursing the loans but this discretion is circumscribed by the inbuilt commercial principles/restrictions as well as that such decisions should be free from arbitrariness, unreasonableness and should protect the interest of the Bank in all events. We are neither competent nor do we wish to venture to examine this aspect, it is for the appropriate authorities in the Bank to examine the matter from all quarters and then to take appropriate action against the erring officers/officials involved in the present case, that too, in accordance with law.
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Bajaj Auto Limited Vs. Company Law Board and Others | assumption that the figure of 25% had to be avoided by the respondent company.It is an admitted fact that even if the purchase of the shares was registered, the total percentage of the holdings of the appellants group would be short of 25%. the existing share holding, at that time, was 23.232% had the transfer of shares been registered then, according to the figures supplied by Mr. Nariman at the time of hearing, the percentage of the holding of the appellants group would have risen to only 23.408%. The learned counsels for the appellants are right in contending that if fear of the inter-connection was the real reason in refusing to register the transfer then such a reason could not exist at that moment because even with the registration of the transfer the total mark of 25% would not be reached. We are in agreement with the appellants submission and are of the opinion that if the number of shares which were purchased had been such that the total mark of 25% could be reached then the action of the Board of Directors could not have been faulted. But with the registration of the transfer of shares in question that danger mark would not have been reached. We are unable to accept as correct the appellants contention that because the total holding of the appellants group would then become dangerously close to 25% it was a good enough reason to refuse transfer. There may not have been anything to prevent the company if, after the shares in question had been registered, any further purchase of shares was made which would have the effect to push the holding of the appellants to 25% mar k, to reject those subsequent transfers. As the transfers in question would not have resulted in reaching the 25% mark that cannot be regarded as a valid reason or consideration for refusing the registration of transfer of shares. 17. Faced with this, Mr. Nariman, learned counsel, however contended that because of the provisions of M.R.T.P. Act in determining the inter-connection, the shares held by a financial institution are required to be excluded. He submitted that even if the appellants did not purchase any further shares but further purchase by financial institutions of more shares could possibly lead to the same result namely of the percentage of holding of the appellants group going beyond 25%. While it is true that the shareholding of the financial institutions is not to be taken into account in determining whether or not two or more bodies corporate are under the same management because of Explanation IV to Section 2(g) of M.R.T .P. Act, we find that if the shares in question had been registered, and existing share-holding of the financial institutions excluded, then the total percentage of shares of the appellants group would come to only 24.405%. for this percentage to push u p to 25%, the financial institutions would have to acquire approximately 27740 additional shares of Bajaj Tempo Limited, which may not be very likely. In any case, if such a situation did arise namely financial Institutions purchasing more shares which would result in danger mark of 25% to reach, there is nothing in law which would then prevent the Board of Directors of Bajaj Tempo Limited to refuse the registration of transfer in favour of Financial institutions. In other words just as the Directions can refuse to register transfer of shares in the appellants name in order to avoid inter-connection similarly, and for the same reason, they could refuse to register transfer of such further purchases by financial institutions if such purchase would have had the effect of making the appellants inter- connected with Bajaj Tempo Limited. The Company Law Board was, therefore, wrong in rejecting a contention of the appellants that the apprehension of the respondent company that it was likely to get inter-connected with the appellants in the event of the impugned transfer of shares being allowed was baseless and/or ill-founded.In order to see whether the Board of Directors had act ed in furtherance of a personal interest or in the interest of company, the resolution dated 29.8.1983 should be read as a whole. It is apparent that being aware of the state of law, every possible reason was stated in this resolution which could justify the Directors in refusing to register a transfer. Of the four reasons given by the Board, two of them were rejected by the Company Law Board, namely that the appellants were competitors of Bajaj Tempo Limited and that the transferees we re not desirable persons from the large point of view of interest of Bajaj Tempo Limited. There is also nothing on record to show that the purchase of shares by the appellants was with ulterior/oblique motives and purposes and with a view to destablise the management of the company. Lastly, we find that the acquisition in question would not have led to the interconnection between the companies and it was not a bona fide exercise of power by the Directors to take into account further acquisition of shares of Bajaj Tempo Limited which may take place in future which may then lead to inter-connection. It is the extent of share-holding at that point of time which had to be taken into consideration and not future acquisition which ma y or may not take place. It was submitted by the appellants counsel that because of the provisions of Section 108A of the Companies Act as it stood at that time, further acquisitions could not take place so as to bring up the share-holding to 25% without first getting central Government approval. We, however, need not examine this aspect because, in our opinion, on the facts which existed on the record, we are satisfied that the exercise of discretion by the Board of Directors in refusing to register the shares in the name of the appellants was not bona fide or in the interest of the company or general-body of share- holders. | 1[ds]As we see it the power of the Board of Directors to refuse registration of transfer of shares must be in the interest of the company and the general body of share holders. No doubt in the year, 1983, Section 82 of the Companies Act provided that the shares or other interest of any member in the company shall be movable property, transferable in the manner provided by the Articles of the Company. Article 52 sought to give absolute and uncontrolled discretion to the Board of Directors to decline to register or acknowledge any transfer of shares. Even then as already held in Bajaj Tempo Limited case (supra), the Board has to act bona fide, and not arbitrarily and for the benefit of the company as a whole. In the case of a public limited company which is listed with Stock Exchange, an important right of share holder is to be able to sell his shares at a favourable price. It is seldom in the interest of the general-body of share-holders that transfer of shares be refused because that will have an adverse impact on the market price of the shares. Free transferability of shares will not artificially deprive its market price. This does not mean that if there is a good reason then the Board has no power to refuse to register the transfer of shares. This Court while examining the action of the Board of Directors is not expected to exercise original appellate jurisdiction and sit in appeal on question of fact. The judicial review while hearing in appeal from the decision of the Company Law Board would be limited to see whether there was a bona fide exercise of power by the Board of Directors while refusing to register the transfer of shares.The Company Law Board in the present case came to the conclusion that at least two of the reasons stated by the Company while refusing to register the transfer of share were not correct. It held that the appellants and Bajaj Tempo were not rivals in business and even though there was hostility between the managements of the companies but that by itself could not mean that the appellants were undesirable persons in the matter of transfer of shares. The only two reasons of the Directors which found favour with the Company Law Board were that the appellants were not bona fide investors and, secondly there was a genuine apprehension about inter-connection of respondent company with the appellantsReverting to issue No. 2. we find that in the Resolution of 29.8.1983 w hat had been stated was that the appellants were not acquiring the shares with a view to or for the purpose of genuine investment but with ulterior motives and purposes including with a view to destablise the management of the company. The alleged reason, therefore, was that the shares were being purchased with ulterior motives and purposes and with a view to destablise the management of the company. The Company Law Board appears to have misunderstood this reason and framed the issue as whether the purchases of impugned shares were bona fide investments. It opined that being an investment company, it was not convincing, that the appellants would prefer to invest in the shares of the company other than the respondent company and the purchases were made so as to increase its share-holding in the respondent company and are, thus, motivated. It also observed that the return on the shares of respondent company did not appear to be adequate enough warranting successive purchases of its shares and appeared to be lacking in bona fide. In our opinion, this was not a correct approach. Merely because the appellants wanted to increase the share-holding cannot by itself be a ground in l aw for refusing to transfer the shares. Realising this in the resolution of the Board of Directors it was alleged that the purchase was not by way of genuine investment but was made with ulterior/oblique motives and with a view to destablise the management of the company. There is nothing placed on the record which can possibly persuade anyone to come to the conclusion that the intention of the purchase of shares by the appellants was with a view to destablise the management of the company or with an ulterior/oblique motive. Prima facie it appears to us that even if it is assuming that the appellants were trying to purchase shares with a view to get a controlling interest in the company that itself cannot be a ground for refusing to transfer the shares unless and until it can be shown that the purchasers were undesirable persons and after gaining control of the company they will act against the company and the shareholders interest. In the instant case the appellants would not even have 25% shares of the company even if the transfer of share was registered and, therefore, the threat to the management, assuming that could be a valid reason, could not be regarded as genuine.It was submitted on behalf of the appellants that the Company Law Board over-looked the fact that the return on the investment of such shares is not only by reason of divided which is obtained but the main income which was expected to arise was from the appreciation in value o f the shares. It was submitted by the learned counsel for the appellants that at the time when the purchases were made, the share price was around Rs. 145 per share and presently it is around Rs. 210/- per share. In our opinion there is merit in this contention. Price appreciation, which may in future lead to issuance of bonus shares or right shares, in the event of increase in capital, is a very valid and good reason for purchasing shares of reputable companies by an investor. Therefore, the reason, which is given for refusing to transfer the share namely inadequate return on shares, cannot be regarded as being bona fideAs regards the fear of being regarded a dominant undertaking, in the event to the being inter-connection between the appellants and the respondent company are concerned, it has been contended on behalf of appellant that the sections pertaining to concentration of economic power in Chapter III of M.R.T.P. Act i.e. Sections 25 &26 have bee n omitted w.e.f. 27.9.1991 and, therefore, as on today it would make no difference and the said reason cannot be regarded as valid. While it is true that the fear of respondent company being regarded as a dominant undertaking as on today ma y not arise but what has to be seen is as to whether this could be a genuine apprehension in the mind of Board of Directors when in 1983 they had declined to register the transfer of shares. The admitted fact is that as on that date, inter-connection could have been established only if the appellants had acquired 33 1/3% shares of the respondent company. But, it is contended that in view of Sachar Committees Report, the company apprehended that the Act would be amend ed so that instead of 33 1/3% shares, it should be 25%. We would, therefore, proceed on the assumption that the figure of 25% had to be avoided by the respondent company.It is an admitted fact that even if the purchase of the shares was registered, the total percentage of the holdings of the appellants group would be short of 25%. the existing share holding, at that time, was 23.232% had the transfer of shares been registered then, according to the figures supplied by Mr. Nariman at the time of hearing, the percentage of the holding of the appellants group would have risen to only 23.408%. The learned counsels for the appellants are right in contending that if fear of the inter-connection was the real reason in refusing to register the transfer then such a reason could not exist at that moment because even with the registration of the transfer the total mark of 25% would not be reached. We are in agreement with the appellants submission and are of the opinion that if the number of shares which were purchased had been such that the total mark of 25% could be reached then the action of the Board of Directors could not have been faulted. But with the registration of the transfer of shares in question that danger mark would not have been reached. We are unable to accept as correct the appellants contention that because the total holding of the appellants group would then become dangerously close to 25% it was a good enough reason to refuse transfer. There may not have been anything to prevent the company if, after the shares in question had been registered, any further purchase of shares was made which would have the effect to push the holding of the appellants to 25% mar k, to reject those subsequent transfers. As the transfers in question would not have resulted in reaching the 25% mark that cannot be regarded as a valid reason or consideration for refusing the registration of transfer of sharesFaced with this, Mr. Nariman, learned counsel, however contended that because of the provisions of M.R.T.P. Act in determining the inter-connection, the shares held by a financial institution are required to be excluded. He submitted that even if the appellants did not purchase any further shares but further purchase by financial institutions of more shares could possibly lead to the same result namely of the percentage of holding of the appellants group going beyond 25%. While it is true that the shareholding of the financial institutions is not to be taken into account in determining whether or not two or more bodies corporate are under the same management because of Explanation IV to Section 2(g) of M.R.T .P. Act, we find that if the shares in question had been registered, and existing share-holding of the financial institutions excluded, then the total percentage of shares of the appellants group would come to only 24.405%. for this percentage to push u p to 25%, the financial institutions would have to acquire approximately 27740 additional shares of Bajaj Tempo Limited, which may not be very likely. In any case, if such a situation did arise namely financial Institutions purchasing more shares which would result in danger mark of 25% to reach, there is nothing in law which would then prevent the Board of Directors of Bajaj Tempo Limited to refuse the registration of transfer in favour of Financial institutions. In other words just as the Directions can refuse to register transfer of shares in the appellants name in order to avoid inter-connection similarly, and for the same reason, they could refuse to register transfer of such further purchases by financial institutions if such purchase would have had the effect of making the appellants inter- connected with Bajaj Tempo Limited. The Company Law Board was, therefore, wrong in rejecting a contention of the appellants that the apprehension of the respondent company that it was likely to get inter-connected with the appellants in the event of the impugned transfer of shares being allowed was baseless and/or ill-founded.In order to see whether the Board of Directors had act ed in furtherance of a personal interest or in the interest of company, the resolution dated 29.8.1983 should be read as a whole. It is apparent that being aware of the state of law, every possible reason was stated in this resolution which could justify the Directors in refusing to register a transfer. Of the four reasons given by the Board, two of them were rejected by the Company Law Board, namely that the appellants were competitors of Bajaj Tempo Limited and that the transferees we re not desirable persons from the large point of view of interest of Bajaj Tempo Limited. There is also nothing on record to show that the purchase of shares by the appellants was with ulterior/oblique motives and purposes and with a view to destablise the management of the company. Lastly, we find that the acquisition in question would not have led to the interconnection between the companies and it was not a bona fide exercise of power by the Directors to take into account further acquisition of shares of Bajaj Tempo Limited which may take place in future which may then lead to inter-connection. It is the extent of share-holding at that point of time which had to be taken into consideration and not future acquisition which ma y or may not take place. It was submitted by the appellants counsel that because of the provisions of Section 108A of the Companies Act as it stood at that time, further acquisitions could not take place so as to bring up the share-holding to 25% without first getting central Government approval. We, however, need not examine this aspect because, in our opinion, on the facts which existed on the record, we are satisfied that the exercise of discretion by the Board of Directors in refusing to register the shares in the name of the appellants was not bona fide or in the interest of the company or general-body of share- holders. | 1 | 5,689 | 2,352 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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assumption that the figure of 25% had to be avoided by the respondent company.It is an admitted fact that even if the purchase of the shares was registered, the total percentage of the holdings of the appellants group would be short of 25%. the existing share holding, at that time, was 23.232% had the transfer of shares been registered then, according to the figures supplied by Mr. Nariman at the time of hearing, the percentage of the holding of the appellants group would have risen to only 23.408%. The learned counsels for the appellants are right in contending that if fear of the inter-connection was the real reason in refusing to register the transfer then such a reason could not exist at that moment because even with the registration of the transfer the total mark of 25% would not be reached. We are in agreement with the appellants submission and are of the opinion that if the number of shares which were purchased had been such that the total mark of 25% could be reached then the action of the Board of Directors could not have been faulted. But with the registration of the transfer of shares in question that danger mark would not have been reached. We are unable to accept as correct the appellants contention that because the total holding of the appellants group would then become dangerously close to 25% it was a good enough reason to refuse transfer. There may not have been anything to prevent the company if, after the shares in question had been registered, any further purchase of shares was made which would have the effect to push the holding of the appellants to 25% mar k, to reject those subsequent transfers. As the transfers in question would not have resulted in reaching the 25% mark that cannot be regarded as a valid reason or consideration for refusing the registration of transfer of shares. 17. Faced with this, Mr. Nariman, learned counsel, however contended that because of the provisions of M.R.T.P. Act in determining the inter-connection, the shares held by a financial institution are required to be excluded. He submitted that even if the appellants did not purchase any further shares but further purchase by financial institutions of more shares could possibly lead to the same result namely of the percentage of holding of the appellants group going beyond 25%. While it is true that the shareholding of the financial institutions is not to be taken into account in determining whether or not two or more bodies corporate are under the same management because of Explanation IV to Section 2(g) of M.R.T .P. Act, we find that if the shares in question had been registered, and existing share-holding of the financial institutions excluded, then the total percentage of shares of the appellants group would come to only 24.405%. for this percentage to push u p to 25%, the financial institutions would have to acquire approximately 27740 additional shares of Bajaj Tempo Limited, which may not be very likely. In any case, if such a situation did arise namely financial Institutions purchasing more shares which would result in danger mark of 25% to reach, there is nothing in law which would then prevent the Board of Directors of Bajaj Tempo Limited to refuse the registration of transfer in favour of Financial institutions. In other words just as the Directions can refuse to register transfer of shares in the appellants name in order to avoid inter-connection similarly, and for the same reason, they could refuse to register transfer of such further purchases by financial institutions if such purchase would have had the effect of making the appellants inter- connected with Bajaj Tempo Limited. The Company Law Board was, therefore, wrong in rejecting a contention of the appellants that the apprehension of the respondent company that it was likely to get inter-connected with the appellants in the event of the impugned transfer of shares being allowed was baseless and/or ill-founded.In order to see whether the Board of Directors had act ed in furtherance of a personal interest or in the interest of company, the resolution dated 29.8.1983 should be read as a whole. It is apparent that being aware of the state of law, every possible reason was stated in this resolution which could justify the Directors in refusing to register a transfer. Of the four reasons given by the Board, two of them were rejected by the Company Law Board, namely that the appellants were competitors of Bajaj Tempo Limited and that the transferees we re not desirable persons from the large point of view of interest of Bajaj Tempo Limited. There is also nothing on record to show that the purchase of shares by the appellants was with ulterior/oblique motives and purposes and with a view to destablise the management of the company. Lastly, we find that the acquisition in question would not have led to the interconnection between the companies and it was not a bona fide exercise of power by the Directors to take into account further acquisition of shares of Bajaj Tempo Limited which may take place in future which may then lead to inter-connection. It is the extent of share-holding at that point of time which had to be taken into consideration and not future acquisition which ma y or may not take place. It was submitted by the appellants counsel that because of the provisions of Section 108A of the Companies Act as it stood at that time, further acquisitions could not take place so as to bring up the share-holding to 25% without first getting central Government approval. We, however, need not examine this aspect because, in our opinion, on the facts which existed on the record, we are satisfied that the exercise of discretion by the Board of Directors in refusing to register the shares in the name of the appellants was not bona fide or in the interest of the company or general-body of share- holders.
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on the assumption that the figure of 25% had to be avoided by the respondent company.It is an admitted fact that even if the purchase of the shares was registered, the total percentage of the holdings of the appellants group would be short of 25%. the existing share holding, at that time, was 23.232% had the transfer of shares been registered then, according to the figures supplied by Mr. Nariman at the time of hearing, the percentage of the holding of the appellants group would have risen to only 23.408%. The learned counsels for the appellants are right in contending that if fear of the inter-connection was the real reason in refusing to register the transfer then such a reason could not exist at that moment because even with the registration of the transfer the total mark of 25% would not be reached. We are in agreement with the appellants submission and are of the opinion that if the number of shares which were purchased had been such that the total mark of 25% could be reached then the action of the Board of Directors could not have been faulted. But with the registration of the transfer of shares in question that danger mark would not have been reached. We are unable to accept as correct the appellants contention that because the total holding of the appellants group would then become dangerously close to 25% it was a good enough reason to refuse transfer. There may not have been anything to prevent the company if, after the shares in question had been registered, any further purchase of shares was made which would have the effect to push the holding of the appellants to 25% mar k, to reject those subsequent transfers. As the transfers in question would not have resulted in reaching the 25% mark that cannot be regarded as a valid reason or consideration for refusing the registration of transfer of sharesFaced with this, Mr. Nariman, learned counsel, however contended that because of the provisions of M.R.T.P. Act in determining the inter-connection, the shares held by a financial institution are required to be excluded. He submitted that even if the appellants did not purchase any further shares but further purchase by financial institutions of more shares could possibly lead to the same result namely of the percentage of holding of the appellants group going beyond 25%. While it is true that the shareholding of the financial institutions is not to be taken into account in determining whether or not two or more bodies corporate are under the same management because of Explanation IV to Section 2(g) of M.R.T .P. Act, we find that if the shares in question had been registered, and existing share-holding of the financial institutions excluded, then the total percentage of shares of the appellants group would come to only 24.405%. for this percentage to push u p to 25%, the financial institutions would have to acquire approximately 27740 additional shares of Bajaj Tempo Limited, which may not be very likely. In any case, if such a situation did arise namely financial Institutions purchasing more shares which would result in danger mark of 25% to reach, there is nothing in law which would then prevent the Board of Directors of Bajaj Tempo Limited to refuse the registration of transfer in favour of Financial institutions. In other words just as the Directions can refuse to register transfer of shares in the appellants name in order to avoid inter-connection similarly, and for the same reason, they could refuse to register transfer of such further purchases by financial institutions if such purchase would have had the effect of making the appellants inter- connected with Bajaj Tempo Limited. The Company Law Board was, therefore, wrong in rejecting a contention of the appellants that the apprehension of the respondent company that it was likely to get inter-connected with the appellants in the event of the impugned transfer of shares being allowed was baseless and/or ill-founded.In order to see whether the Board of Directors had act ed in furtherance of a personal interest or in the interest of company, the resolution dated 29.8.1983 should be read as a whole. It is apparent that being aware of the state of law, every possible reason was stated in this resolution which could justify the Directors in refusing to register a transfer. Of the four reasons given by the Board, two of them were rejected by the Company Law Board, namely that the appellants were competitors of Bajaj Tempo Limited and that the transferees we re not desirable persons from the large point of view of interest of Bajaj Tempo Limited. There is also nothing on record to show that the purchase of shares by the appellants was with ulterior/oblique motives and purposes and with a view to destablise the management of the company. Lastly, we find that the acquisition in question would not have led to the interconnection between the companies and it was not a bona fide exercise of power by the Directors to take into account further acquisition of shares of Bajaj Tempo Limited which may take place in future which may then lead to inter-connection. It is the extent of share-holding at that point of time which had to be taken into consideration and not future acquisition which ma y or may not take place. It was submitted by the appellants counsel that because of the provisions of Section 108A of the Companies Act as it stood at that time, further acquisitions could not take place so as to bring up the share-holding to 25% without first getting central Government approval. We, however, need not examine this aspect because, in our opinion, on the facts which existed on the record, we are satisfied that the exercise of discretion by the Board of Directors in refusing to register the shares in the name of the appellants was not bona fide or in the interest of the company or general-body of share- holders.
|
Hatti Singh Vs. State of Haryana | PW-10, he went to Haridwar on 12.07.1995 and came back on 24.07.1995. He was not even informed about the fact that the deceased was missing. His statement, as noticed hereinbefore, was recorded only on 25.07.1995. He allegedly made a statement to the effect that the appellant and his associates were known to him. After he made the said statement, he was taken to the Villages Bass. The accused having not been found there and having been told that they were at Badchhaper. He went there and Police arrested both Hatti and Naresh together. Therefore, the arrest of the said accused must have taken place on 25.07.1995. The Investigating Officer, however, stated that they were arrested on 29.07.1995. It is, therefore, difficult to accept that he is a reliable witness or the theory that the deceased was last seen with the appellant had been established. 24. The testimonies of PW-11, as noticed hereinbefore, had not been relied upon by the learned Trial Judge. 25. It may be true that there had been some recoveries from the appellant including a purse and an electricity bill; but then a ring was also recovered from Naresh. He has been acquitted. A watch was recovered from another accused. The only distinctive features to hold the appellant guilty of commission of the offences, while acquitting the other three are only last seen and a confession leading to recovery of number plate of the vehicle. Other accused were also last seen with the deceased, if PW-10 is to be believed. 26. The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may provide for a link in the chain. But unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis. 27. In Ramreddy Rajesh Khanna Reddy and Another v. State of Andhra Pradesh [(2006) 10 SCC 172] , this Court noticed: "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration. In State of U.P. v. Satish [(2005) 3 SCC 114] , this Court observed: "22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some case to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of others persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." [See also Bodh Raj & Bodha & Ors. Vs. State of Jammu & Kashmir AIR 2002 SC 3164 .]" [See also State of Goa v. Sanjay Thakran and Anr. JT 2007 (5) SC 146 ] There cannot be any doubt that conviction can be based on circumstantial evidence, but therefor the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and in inconsistent with his innocence. Circumstances, as is well known, from which an inference of guilt is sought to be drawn are required to be cogently and firmly established. They have to be taken into consideration cumulatively. They must be able to conclude that within all human probability the accused committed the crime. [See Geejaganda Somaiah v. State of Karnataka - AIR 2007 SCW 1681]. Reliance has been placed by the learned counsel for the State on a decision of this Court in Kashi Ram (supra), wherein it was held that the incriminating circumstances must from a complete chain and must be consistent with no other hypothesis except the guilt of the accused. 28. Therein, this Court was dealing with a case where the accused had killed his wife and two daughters. As in the aforementioned situation, when the deceased were last seen the respondent therein, Section 106 of the Indian Evidence Act was held to be applicable. As in a case of that nature, probability of a wife being murdered by an outsider may ordinarily be ruled out, failure to offer an explanation by the husband in the aforementioned situation would itself be a circumstance which may be taken into consideration therefore. [See also Raj Kumar Prasad Tamarkar v. State of Bihar & Another — 2007 (1) SCALE 19 — Para 24 & 25]. The said decision, in our opinion, is not applicable to the fact of the instant case. 29. The learned counsel for the State would submit that recovery of the articles would raise a presumption under Section 114 of the Indian Evidence Act. Application of such a presumption is limited. A presumption may be in respect of commission of theft or receipt of stolen property; if a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the appellant could not have been convicted for commission of murder particularly when on the same evidence other persons had been given benefit of doubt. 30. Having regard to the peculiar facts and circumstances of the case, we are inclined to extend the same benefit to the appellant herein. | 1[ds]e cannot be any doubt that conviction can be based on circumstantial evidence, but therefor the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and in inconsistent with his innocence. Circumstances, as is well known, from which an inference of guilt is sought to be drawn are required to be cogently and firmly established. They have to be taken into consideration cumulatively. They must be able to conclude that within all human probability the accused committed the crime. [See Geejaganda Somaiah v. State of KarnatakaAIR 2007 SCW 1681].e has been placed by the learned counsel for the State on a decision of this Court in Kashi Ram (supra), wherein it was held that the incriminating circumstances must from a complete chain and must be consistent with no other hypothesis except the guilt of the accused.Therein, this Court was dealing with a case where the accused had killed his wife and two daughters. As in the aforementioned situation, when the deceased were last seen the respondent therein, Section 106 of the Indian Evidence Act was held to be applicable. As in a case of that nature, probability of a wife being murdered by an outsider may ordinarily be ruled out, failure to offer an explanation by the husband in the aforementioned situation would itself be a circumstance which may be taken into consideration therefore. [See also Raj Kumar Prasad Tamarkar v. State of Bihar & Another — 2007 (1) SCALE 19 — Para 24 & 25].e said decision, in our opinion, is not applicable to the fact of the instant case.The learned counsel for the State would submit that recovery of the articles would raise a presumption under Section 114 of the Indian Evidence Act. Application of such a presumption is limited. A presumption may be in respect of commission of theft or receipt of stolen property; if a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the appellant could not have been convicted for commission of murder particularly when on the same evidence other persons had been given benefit of doubt.Having regard to the peculiar facts and circumstances of the case, we are inclined to extend the same benefit to the appellant herein. | 1 | 3,388 | 423 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
PW-10, he went to Haridwar on 12.07.1995 and came back on 24.07.1995. He was not even informed about the fact that the deceased was missing. His statement, as noticed hereinbefore, was recorded only on 25.07.1995. He allegedly made a statement to the effect that the appellant and his associates were known to him. After he made the said statement, he was taken to the Villages Bass. The accused having not been found there and having been told that they were at Badchhaper. He went there and Police arrested both Hatti and Naresh together. Therefore, the arrest of the said accused must have taken place on 25.07.1995. The Investigating Officer, however, stated that they were arrested on 29.07.1995. It is, therefore, difficult to accept that he is a reliable witness or the theory that the deceased was last seen with the appellant had been established. 24. The testimonies of PW-11, as noticed hereinbefore, had not been relied upon by the learned Trial Judge. 25. It may be true that there had been some recoveries from the appellant including a purse and an electricity bill; but then a ring was also recovered from Naresh. He has been acquitted. A watch was recovered from another accused. The only distinctive features to hold the appellant guilty of commission of the offences, while acquitting the other three are only last seen and a confession leading to recovery of number plate of the vehicle. Other accused were also last seen with the deceased, if PW-10 is to be believed. 26. The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may provide for a link in the chain. But unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis. 27. In Ramreddy Rajesh Khanna Reddy and Another v. State of Andhra Pradesh [(2006) 10 SCC 172] , this Court noticed: "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration. In State of U.P. v. Satish [(2005) 3 SCC 114] , this Court observed: "22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some case to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of others persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." [See also Bodh Raj & Bodha & Ors. Vs. State of Jammu & Kashmir AIR 2002 SC 3164 .]" [See also State of Goa v. Sanjay Thakran and Anr. JT 2007 (5) SC 146 ] There cannot be any doubt that conviction can be based on circumstantial evidence, but therefor the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and in inconsistent with his innocence. Circumstances, as is well known, from which an inference of guilt is sought to be drawn are required to be cogently and firmly established. They have to be taken into consideration cumulatively. They must be able to conclude that within all human probability the accused committed the crime. [See Geejaganda Somaiah v. State of Karnataka - AIR 2007 SCW 1681]. Reliance has been placed by the learned counsel for the State on a decision of this Court in Kashi Ram (supra), wherein it was held that the incriminating circumstances must from a complete chain and must be consistent with no other hypothesis except the guilt of the accused. 28. Therein, this Court was dealing with a case where the accused had killed his wife and two daughters. As in the aforementioned situation, when the deceased were last seen the respondent therein, Section 106 of the Indian Evidence Act was held to be applicable. As in a case of that nature, probability of a wife being murdered by an outsider may ordinarily be ruled out, failure to offer an explanation by the husband in the aforementioned situation would itself be a circumstance which may be taken into consideration therefore. [See also Raj Kumar Prasad Tamarkar v. State of Bihar & Another — 2007 (1) SCALE 19 — Para 24 & 25]. The said decision, in our opinion, is not applicable to the fact of the instant case. 29. The learned counsel for the State would submit that recovery of the articles would raise a presumption under Section 114 of the Indian Evidence Act. Application of such a presumption is limited. A presumption may be in respect of commission of theft or receipt of stolen property; if a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the appellant could not have been convicted for commission of murder particularly when on the same evidence other persons had been given benefit of doubt. 30. Having regard to the peculiar facts and circumstances of the case, we are inclined to extend the same benefit to the appellant herein.
### Response:
1
### Explanation:
e cannot be any doubt that conviction can be based on circumstantial evidence, but therefor the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and in inconsistent with his innocence. Circumstances, as is well known, from which an inference of guilt is sought to be drawn are required to be cogently and firmly established. They have to be taken into consideration cumulatively. They must be able to conclude that within all human probability the accused committed the crime. [See Geejaganda Somaiah v. State of KarnatakaAIR 2007 SCW 1681].e has been placed by the learned counsel for the State on a decision of this Court in Kashi Ram (supra), wherein it was held that the incriminating circumstances must from a complete chain and must be consistent with no other hypothesis except the guilt of the accused.Therein, this Court was dealing with a case where the accused had killed his wife and two daughters. As in the aforementioned situation, when the deceased were last seen the respondent therein, Section 106 of the Indian Evidence Act was held to be applicable. As in a case of that nature, probability of a wife being murdered by an outsider may ordinarily be ruled out, failure to offer an explanation by the husband in the aforementioned situation would itself be a circumstance which may be taken into consideration therefore. [See also Raj Kumar Prasad Tamarkar v. State of Bihar & Another — 2007 (1) SCALE 19 — Para 24 & 25].e said decision, in our opinion, is not applicable to the fact of the instant case.The learned counsel for the State would submit that recovery of the articles would raise a presumption under Section 114 of the Indian Evidence Act. Application of such a presumption is limited. A presumption may be in respect of commission of theft or receipt of stolen property; if a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the appellant could not have been convicted for commission of murder particularly when on the same evidence other persons had been given benefit of doubt.Having regard to the peculiar facts and circumstances of the case, we are inclined to extend the same benefit to the appellant herein.
|
Smt. Bhagwan Kaur Vs. State of Punjab and Others | provided.(2) Every tenant intending to acquire proprietary rights shall make an application in writing to the prescribed authority in the prescribed manner, containing the following particulars, namely -(a) the area and location of the land in respect of which the application is made;(b) the name of the landowner from whom proprietary rights are to be acquired;(c) such other particulars as may be prescribed.(3) The right conferred upon a tenant to acquire proprietary rights in respect of any land under this section may, if such tenant has sublet the land be exercised by the sub-tenant to the exclusion of the tenant."8. No objection was raised before the Tehsildar, the Collector or the Financial Commissioner that the respondents were not tenants within the definition in Section 20. During the course of discussion it, however, appeared that the inequity which has been noticed by the High Court may perhaps be obviated by giving close attention to the definition of the word "tenant" and applying it to Section 22. If this definition is applied it would appear that not only a tenant who held land which had been reserved by the landowner for his personal cultivation but also a tenant of a landowner who owns 30 standard acres or less of land and the land falls within his permissible limit, would be debarred from making an application under Section 22. It may be, though we do not decide the point in this case, that a landowner who has not reserved under Section 5, may at one stage after some tenants have exercised option under Section 22 fall within the description in Section 7-A(1)(b) of the Act. But, as we have said, this point was taken before the revenue authorities and it is too late now to allow the point to be raised because if this point was allowed to be raised various questions will have to be decided in order to finally decide the case. It would have to be decided if this interpretation was accepted as to at what stage landowner started falling under S. 7-A(1)(b). It may also be that this argument might be refuted on the ground that the tenants when they made the applications did fall within the definition under Section 20 as at that time the landowner owned more than 30 standard acres.9. Be that as it may, we have to decide the case on the points taken before the revenue authorities and the High Court. The main point that was urged before the High Court was that the provisions of Chapter IV-A, which was inserted into the Act by Pepsu Act XV of 1956, somehow helped the appellant. Section 32-A provides that no person shall be entitled to own or hold as landowner or tenant land under his personal cultivation within the State which exceeds in the aggregate the permissible limit, and further that for the purpose computing the permissible limit the provisions of clauses (d) and (e) of sub-section (2) of Section 3 shall not apply. Clause (d) of sub-section (2) of Section 3 deals with the case when a landowner died within a period of six months from the commencement of the Presidents Act, and clause (e) thereof stipulates that "any transfer of land made by the landowner after the commencement of the Presidents Act and clause (e) thereof stipulates that "any transfer of land made by the landowner after the commencement of the Presidents Act shall be disregarded."10. Section 32-B of Chapter IV-A provides for returns by persons having land in excess of the ceiling in the following terms :"32-B. Any person, who on the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, owns or holds as landowner or tenant land under his personal cultivation, which in the aggregate exceeds the permissible limit, shall, within a period of one month from the commencement of the Pepsu Tenancy and Agricultural Land (Amendment) Ordinance, 1958 furnish to the Collector a return giving the particulars of all his land in the prescribed form and manner and stating therein his selection of the parcel or parcels of land not exceeding in the aggregate the permissible limit which he desires to retain and the lands in respect of which he claims exemption from the ceiling under the provisions of this Chapter....... (Proviso omitted).11. It is the case of the appellant that she filed a return under Section 32-B. According to the respondents she was not entitled to file a return because she did not own or hold as landowner or tenant land under her personal cultivation which in the aggregate exceeded the permissible limit. The High Court held that Section 32-B applies only to a landowner owning or holding land under his personal cultivation which in the aggregate exceeds the permissible limit, and repelled the contention that the words "under his personal cultivation" applied only to a tenant and not to a landowner.12. It seems to us that although this interpretation leads to some hardship on some persons this is the correct meaning, and accordingly the appellant cannot take advantage of Section 32-B and the subsequent provisions in Chapter IV-A. If Chapter-IV-A is out of the way then if is difficult to hold that Section 22 does not apply. Section 22 clearly enables the respondents to put in applications to acquire proprietary rights as it was not contested that they were tenants within the definition of the word in Section 20.13. The learned counsel for the appellant further urges that the Act is hit by Article 14 of the Constitution. This point is not open for any further discussion because this Court has held that this Act is protected by Article 31-A of the Constitution and cannot be challenged on the ground that it violates Article 14. (See Pritam Singh Chahil v. The State of Punjab (AIR 1967 SC 930 : (1967) 2 SCJ 325.); and Inder Singh v. State of Punjab. (AIR 1967 SC 1776 : (1967) 3 SCR 603 : (1966) 1 SCJ 557.) | 0[ds]It was only on July 25, 1966, that application was made to the High Court for setting aside the abatement. This application was dismissed by the High Court on March 20, 1967. The High Court (Narula, J.) held that the application was barred by time as it was not accompanied by application under Section 5 of the Limitation Act. This order has become final because no appeal to the Supreme Court was filed against the order. It is clear that the appeal insofar as it deals with the group of tenants of which Ram Pratap was a member hasare unable to appreciate how the fact that one petition was filed is relevant to the determination of the question of abatement. The other groups of tenants held separate lands, they had separate rights and they had been granted proprietary rights in separate lands and on separate terms. We are unable to hold that the whole appeal has abated.No objection was raised before the Tehsildar, the Collector or the Financial Commissioner that the respondents were not tenants within the definition in Section 20. During the course of discussion it, however, appeared that the inequity which has been noticed by the High Court may perhaps be obviated by giving close attention to the definition of the word "tenant" and applying it to Section 22. If this definition is applied it would appear that not only a tenant who held land which had been reserved by the landowner for his personal cultivation but also a tenant of a landowner who owns 30 standard acres or less of land and the land falls within his permissible limit, would be debarred from making an application under Section 22. It may be, though we do not decide the point in this case, that a landowner who has not reserved under Section 5, may at one stage after some tenants have exercised option under Section 22 fall within the description in Sectionof the Act. But, as we have said, this point was taken before the revenue authorities and it is too late now to allow the point to be raised because if this point was allowed to be raised various questions will have to be decided in order to finally decide the case. It would have to be decided if this interpretation was accepted as to at what stage landowner started falling under S.It may also be that this argument might be refuted on the ground that the tenants when they made the applications did fall within the definition under Section 20 as at that time the landowner owned more than 30 standard acres.It is the case of the appellant that she filed a return under Sectiong to therespondents she was not entitled to file a return because she did not own or hold as landowner or tenant land under her personal cultivation which in the aggregate exceeded the permissible limit.The High Court held that Sectionapplies only to a landowner owning or holding land under his personal cultivation which in the aggregate exceeds the permissible limit, and repelled the contention that the words "under his personal cultivation" applied only to a tenant and not to a landowner.12. It seems to us that although this interpretation leads to some hardship on some persons this is the correct meaning, and accordingly the appellant cannot take advantage of Sectionand the subsequent provisions in Chapteris out of the way then if is difficult to hold that Section 22 does not apply. Section 22 clearly enables the respondents to put in applications to acquire proprietary rights as it was not contested that they were tenants within the definition of the word in Section 20.This point is not open for any further discussion because this Court has held that this Act is protected by Articleof the Constitution and cannot be challenged on the ground that it violates Article 14. (See Pritam Singh Chahil v. The State of Punjab (AIR 1967 SC 930 : (1967) 2 SCJ 325.); and Inder Singh v. State of Punjab. (AIR 1967 SC 1776 : (1967) 3 SCR 603 : (1966) 1 SCJ 557.) | 0 | 2,709 | 742 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
provided.(2) Every tenant intending to acquire proprietary rights shall make an application in writing to the prescribed authority in the prescribed manner, containing the following particulars, namely -(a) the area and location of the land in respect of which the application is made;(b) the name of the landowner from whom proprietary rights are to be acquired;(c) such other particulars as may be prescribed.(3) The right conferred upon a tenant to acquire proprietary rights in respect of any land under this section may, if such tenant has sublet the land be exercised by the sub-tenant to the exclusion of the tenant."8. No objection was raised before the Tehsildar, the Collector or the Financial Commissioner that the respondents were not tenants within the definition in Section 20. During the course of discussion it, however, appeared that the inequity which has been noticed by the High Court may perhaps be obviated by giving close attention to the definition of the word "tenant" and applying it to Section 22. If this definition is applied it would appear that not only a tenant who held land which had been reserved by the landowner for his personal cultivation but also a tenant of a landowner who owns 30 standard acres or less of land and the land falls within his permissible limit, would be debarred from making an application under Section 22. It may be, though we do not decide the point in this case, that a landowner who has not reserved under Section 5, may at one stage after some tenants have exercised option under Section 22 fall within the description in Section 7-A(1)(b) of the Act. But, as we have said, this point was taken before the revenue authorities and it is too late now to allow the point to be raised because if this point was allowed to be raised various questions will have to be decided in order to finally decide the case. It would have to be decided if this interpretation was accepted as to at what stage landowner started falling under S. 7-A(1)(b). It may also be that this argument might be refuted on the ground that the tenants when they made the applications did fall within the definition under Section 20 as at that time the landowner owned more than 30 standard acres.9. Be that as it may, we have to decide the case on the points taken before the revenue authorities and the High Court. The main point that was urged before the High Court was that the provisions of Chapter IV-A, which was inserted into the Act by Pepsu Act XV of 1956, somehow helped the appellant. Section 32-A provides that no person shall be entitled to own or hold as landowner or tenant land under his personal cultivation within the State which exceeds in the aggregate the permissible limit, and further that for the purpose computing the permissible limit the provisions of clauses (d) and (e) of sub-section (2) of Section 3 shall not apply. Clause (d) of sub-section (2) of Section 3 deals with the case when a landowner died within a period of six months from the commencement of the Presidents Act, and clause (e) thereof stipulates that "any transfer of land made by the landowner after the commencement of the Presidents Act and clause (e) thereof stipulates that "any transfer of land made by the landowner after the commencement of the Presidents Act shall be disregarded."10. Section 32-B of Chapter IV-A provides for returns by persons having land in excess of the ceiling in the following terms :"32-B. Any person, who on the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, owns or holds as landowner or tenant land under his personal cultivation, which in the aggregate exceeds the permissible limit, shall, within a period of one month from the commencement of the Pepsu Tenancy and Agricultural Land (Amendment) Ordinance, 1958 furnish to the Collector a return giving the particulars of all his land in the prescribed form and manner and stating therein his selection of the parcel or parcels of land not exceeding in the aggregate the permissible limit which he desires to retain and the lands in respect of which he claims exemption from the ceiling under the provisions of this Chapter....... (Proviso omitted).11. It is the case of the appellant that she filed a return under Section 32-B. According to the respondents she was not entitled to file a return because she did not own or hold as landowner or tenant land under her personal cultivation which in the aggregate exceeded the permissible limit. The High Court held that Section 32-B applies only to a landowner owning or holding land under his personal cultivation which in the aggregate exceeds the permissible limit, and repelled the contention that the words "under his personal cultivation" applied only to a tenant and not to a landowner.12. It seems to us that although this interpretation leads to some hardship on some persons this is the correct meaning, and accordingly the appellant cannot take advantage of Section 32-B and the subsequent provisions in Chapter IV-A. If Chapter-IV-A is out of the way then if is difficult to hold that Section 22 does not apply. Section 22 clearly enables the respondents to put in applications to acquire proprietary rights as it was not contested that they were tenants within the definition of the word in Section 20.13. The learned counsel for the appellant further urges that the Act is hit by Article 14 of the Constitution. This point is not open for any further discussion because this Court has held that this Act is protected by Article 31-A of the Constitution and cannot be challenged on the ground that it violates Article 14. (See Pritam Singh Chahil v. The State of Punjab (AIR 1967 SC 930 : (1967) 2 SCJ 325.); and Inder Singh v. State of Punjab. (AIR 1967 SC 1776 : (1967) 3 SCR 603 : (1966) 1 SCJ 557.)
### Response:
0
### Explanation:
It was only on July 25, 1966, that application was made to the High Court for setting aside the abatement. This application was dismissed by the High Court on March 20, 1967. The High Court (Narula, J.) held that the application was barred by time as it was not accompanied by application under Section 5 of the Limitation Act. This order has become final because no appeal to the Supreme Court was filed against the order. It is clear that the appeal insofar as it deals with the group of tenants of which Ram Pratap was a member hasare unable to appreciate how the fact that one petition was filed is relevant to the determination of the question of abatement. The other groups of tenants held separate lands, they had separate rights and they had been granted proprietary rights in separate lands and on separate terms. We are unable to hold that the whole appeal has abated.No objection was raised before the Tehsildar, the Collector or the Financial Commissioner that the respondents were not tenants within the definition in Section 20. During the course of discussion it, however, appeared that the inequity which has been noticed by the High Court may perhaps be obviated by giving close attention to the definition of the word "tenant" and applying it to Section 22. If this definition is applied it would appear that not only a tenant who held land which had been reserved by the landowner for his personal cultivation but also a tenant of a landowner who owns 30 standard acres or less of land and the land falls within his permissible limit, would be debarred from making an application under Section 22. It may be, though we do not decide the point in this case, that a landowner who has not reserved under Section 5, may at one stage after some tenants have exercised option under Section 22 fall within the description in Sectionof the Act. But, as we have said, this point was taken before the revenue authorities and it is too late now to allow the point to be raised because if this point was allowed to be raised various questions will have to be decided in order to finally decide the case. It would have to be decided if this interpretation was accepted as to at what stage landowner started falling under S.It may also be that this argument might be refuted on the ground that the tenants when they made the applications did fall within the definition under Section 20 as at that time the landowner owned more than 30 standard acres.It is the case of the appellant that she filed a return under Sectiong to therespondents she was not entitled to file a return because she did not own or hold as landowner or tenant land under her personal cultivation which in the aggregate exceeded the permissible limit.The High Court held that Sectionapplies only to a landowner owning or holding land under his personal cultivation which in the aggregate exceeds the permissible limit, and repelled the contention that the words "under his personal cultivation" applied only to a tenant and not to a landowner.12. It seems to us that although this interpretation leads to some hardship on some persons this is the correct meaning, and accordingly the appellant cannot take advantage of Sectionand the subsequent provisions in Chapteris out of the way then if is difficult to hold that Section 22 does not apply. Section 22 clearly enables the respondents to put in applications to acquire proprietary rights as it was not contested that they were tenants within the definition of the word in Section 20.This point is not open for any further discussion because this Court has held that this Act is protected by Articleof the Constitution and cannot be challenged on the ground that it violates Article 14. (See Pritam Singh Chahil v. The State of Punjab (AIR 1967 SC 930 : (1967) 2 SCJ 325.); and Inder Singh v. State of Punjab. (AIR 1967 SC 1776 : (1967) 3 SCR 603 : (1966) 1 SCJ 557.)
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Rameshwar Dayal Vs. Indian Railway Construction Co. Ltd. & Others | preferred LPA No. 294 of 2000. The Division Bench of the High Court by a common order dated 14th February, 2006 dismissed the appeals preferred by the appellants against rejection of their claim of higher emoluments but the appeal filed by the IRCON against the direction to regularize the services of appellant Rameshwar Dayal has been allowed and the said direction has been set aside. The Division Bench has not adverted to the other reliefs sought by the writ petitioners.9. The appellants are before us against the said order. 10. We have heard Mr. O.P. Khadaria, learned Counsel for the appellants and Mr. Chetan Sharma, learned Senior Counsel appearing on behalf of the respondents. Mr. Khadaria has also filed written submissions. 11. Mr. Khadaria points that the Board of Directors of IRCON in its meeting held on 3rd March, 1982 and that of the meeting held on 10th January, 1983 decided to pay remuneration to the employees in Algeria on the basis of the scale of pay they are getting in the IRCON and hence, granting lesser emoluments to the appellant is illegal. We do not find any substance in the submission of Mr. Khadaria and the reliance placed by him on the decisions of the Board of Directors of the IRCON dated 3rd March, 1982 and 10th January, 1983 are misconceived and have no bearing so far as the claim of emoluments is concerned. Undisputedly, emoluments of these appellants were fixed after the aforesaid Resolution of the Board of Directors. Their emoluments therefore shall be governed by the terms and conditions agreed upon. It is relevant here to state that the appellants claim parity with two persons who were sent to Algeria as Chartered Accountant and Engineer (Technical Officers). Appellants were working as French Translators and, therefore, they cannot claim parity on the basis of similarity in the scale of pay when they belong to a different category. As rightly observed by the Division Bench of the High Court that once the appellants have entered into an agreement they cannot go back and claim for higher emoluments. Relevant portion of the judgment of the Division Bench in this regard reads as follows: “So far as the plea for higher emoluments is concerned, the petitioner had accepted his assignment in Algeria and he cannot go back on his agreement now. It is entirely for the authority concerned to decide what pay scale should be given to a particular employee and Court cannot interfere with the pay scalevide Delhi Tapedic Unmulan Samiti v. Babita Rani & Ors. (supra). At any event, as held by the learned Single Judge, the appellant can file a suit for this purpose.” 12. As regards the claim of Rameshwar Dayal for regularisation in service, Mr. Khadaria submits that his performance being satisfactory he cannot be thrown out from service and as such the Division Bench erred in setting aside the direction given by the learned Single Judge for regularising his services. The observation of the learned Single Judge in this connection reads as follows: “Now, I come to the question of the respondent’s authority to dispense with the services of the petitioner in CW.2298/95. There is considerable force in the submission of Mr. O.P. Khadaria that the petitioner, Rameshwar Dayal, who belongs to a Scheduled Caste category, whose post has been re-designated, cannot be sent out by the respondent. It is not the case of the petitioner in CW.2298/95, Rameshwar Dayal, is not capable of working on ministerial assignment having regard to his long experience in the organisation. The respondent/Corporation being a public authority, is bound to act in accordance with fairplay and justice, and cannot dispense with the services of the petitioner in CW.2298/95 by simply issuing a show cause noticed asking him to fend for himself. It may also be noticed that it is not the case of the respondent/Corporation that the performance of the petitioner, Rameshwar Dayal, has not been satisfactory.” 13. However, the Division Bench while setting aside the aforesaid direction observed as follows: “As regards question of regularization we have already held in Delhi Tapedic Unmulan Samiti v.Babita Rani & Ors., LPA No.2554/2005, decided on 16th January, 2006, that the Court cannot issue directions for regularization as it is an executive function, and it depends on the relevant rules and can only be directed by the Authorities concerned and not the Court. The entire case law on the point has been considered in Delhi Tapedic Unmulan Samiti v. Babita Rani & Ors. (supra) and hence we are not repeating the same again.” 14. Mr. Sharma, however, contends that in the absence of any policy or scheme framed by the employer no claim of regularisation can be made. He points out that the IRCON needed the services of the French Translators when it was executing projects in French speaking countries and now that no such project is with it, services of the appellant cannot be regularised. 15. Having appreciated the rival submission, we do not find any substance in the submission of Mr. Khadaria. This appellant was appointed temporarily and excepting the report submitted to the Registrar of Companies, there is nothing on record to show that he was ever made permanent. The service of this appellant as French Translator has been dispensed with as no project in French speaking country is with the IRCON. In the face of it, the action of the IRCON in dispensing with the services of this appellant cannot be said to be illegal or arbitrary.16. As the High Court has not gone into the claim of the appellants for payment of compensation for denying air passage and claim of promotion of appellant Rameshwar Dayal, we are not inclined to look into these grievances in present appeals.17. To put the record straight, Mr. Khadaria has referred to a large number of authorities which have no relevance at all to the issues involved in these appeals and accordingly we do not consider it expedient to incorporate the same. | 0[ds]We do not find any substance in the submission of Mr. Khadaria and the reliance placed by him on the decisions of the Board of Directors of the IRCON dated 3rd March, 1982 and 10th January, 1983 are misconceived and have no bearing so far as the claim of emoluments is concerned. Undisputedly, emoluments of these appellants were fixed after the aforesaid Resolution of the Board of Directors. Their emoluments therefore shall be governed by the terms and conditions agreed upon. It is relevant here to state that the appellants claim parity with two persons who were sent to Algeria as Chartered Accountant and Engineer (Technical Officers). Appellants were working as French Translators and, therefore, they cannot claim parity on the basis of similarity in the scale of pay when they belong to a different category. As rightly observed by the Division Bench of the High Court that once the appellants have entered into an agreement they cannot go back and claim for higher emoluments.Having appreciated the rival submission, we do not find any substance in the submission of Mr. Khadaria. This appellant was appointed temporarily and excepting the report submitted to the Registrar of Companies, there is nothing on record to show that he was ever made permanent. The service of this appellant as French Translator has been dispensed with as no project in French speaking country is with the IRCON. In the face of it, the action of the IRCON in dispensing with the services of this appellant cannot be said to be illegal or arbitrary.16. As the High Court has not gone into the claim of the appellants for payment of compensation for denying air passage and claim of promotion of appellant Rameshwar Dayal, we are not inclined to look into these grievances in present appeals.17. To put the record straight, Mr. Khadaria has referred to a large number of authorities which have no relevance at all to the issues involved in these appeals and accordingly we do not consider it expedient to incorporate the same. | 0 | 2,369 | 369 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
preferred LPA No. 294 of 2000. The Division Bench of the High Court by a common order dated 14th February, 2006 dismissed the appeals preferred by the appellants against rejection of their claim of higher emoluments but the appeal filed by the IRCON against the direction to regularize the services of appellant Rameshwar Dayal has been allowed and the said direction has been set aside. The Division Bench has not adverted to the other reliefs sought by the writ petitioners.9. The appellants are before us against the said order. 10. We have heard Mr. O.P. Khadaria, learned Counsel for the appellants and Mr. Chetan Sharma, learned Senior Counsel appearing on behalf of the respondents. Mr. Khadaria has also filed written submissions. 11. Mr. Khadaria points that the Board of Directors of IRCON in its meeting held on 3rd March, 1982 and that of the meeting held on 10th January, 1983 decided to pay remuneration to the employees in Algeria on the basis of the scale of pay they are getting in the IRCON and hence, granting lesser emoluments to the appellant is illegal. We do not find any substance in the submission of Mr. Khadaria and the reliance placed by him on the decisions of the Board of Directors of the IRCON dated 3rd March, 1982 and 10th January, 1983 are misconceived and have no bearing so far as the claim of emoluments is concerned. Undisputedly, emoluments of these appellants were fixed after the aforesaid Resolution of the Board of Directors. Their emoluments therefore shall be governed by the terms and conditions agreed upon. It is relevant here to state that the appellants claim parity with two persons who were sent to Algeria as Chartered Accountant and Engineer (Technical Officers). Appellants were working as French Translators and, therefore, they cannot claim parity on the basis of similarity in the scale of pay when they belong to a different category. As rightly observed by the Division Bench of the High Court that once the appellants have entered into an agreement they cannot go back and claim for higher emoluments. Relevant portion of the judgment of the Division Bench in this regard reads as follows: “So far as the plea for higher emoluments is concerned, the petitioner had accepted his assignment in Algeria and he cannot go back on his agreement now. It is entirely for the authority concerned to decide what pay scale should be given to a particular employee and Court cannot interfere with the pay scalevide Delhi Tapedic Unmulan Samiti v. Babita Rani & Ors. (supra). At any event, as held by the learned Single Judge, the appellant can file a suit for this purpose.” 12. As regards the claim of Rameshwar Dayal for regularisation in service, Mr. Khadaria submits that his performance being satisfactory he cannot be thrown out from service and as such the Division Bench erred in setting aside the direction given by the learned Single Judge for regularising his services. The observation of the learned Single Judge in this connection reads as follows: “Now, I come to the question of the respondent’s authority to dispense with the services of the petitioner in CW.2298/95. There is considerable force in the submission of Mr. O.P. Khadaria that the petitioner, Rameshwar Dayal, who belongs to a Scheduled Caste category, whose post has been re-designated, cannot be sent out by the respondent. It is not the case of the petitioner in CW.2298/95, Rameshwar Dayal, is not capable of working on ministerial assignment having regard to his long experience in the organisation. The respondent/Corporation being a public authority, is bound to act in accordance with fairplay and justice, and cannot dispense with the services of the petitioner in CW.2298/95 by simply issuing a show cause noticed asking him to fend for himself. It may also be noticed that it is not the case of the respondent/Corporation that the performance of the petitioner, Rameshwar Dayal, has not been satisfactory.” 13. However, the Division Bench while setting aside the aforesaid direction observed as follows: “As regards question of regularization we have already held in Delhi Tapedic Unmulan Samiti v.Babita Rani & Ors., LPA No.2554/2005, decided on 16th January, 2006, that the Court cannot issue directions for regularization as it is an executive function, and it depends on the relevant rules and can only be directed by the Authorities concerned and not the Court. The entire case law on the point has been considered in Delhi Tapedic Unmulan Samiti v. Babita Rani & Ors. (supra) and hence we are not repeating the same again.” 14. Mr. Sharma, however, contends that in the absence of any policy or scheme framed by the employer no claim of regularisation can be made. He points out that the IRCON needed the services of the French Translators when it was executing projects in French speaking countries and now that no such project is with it, services of the appellant cannot be regularised. 15. Having appreciated the rival submission, we do not find any substance in the submission of Mr. Khadaria. This appellant was appointed temporarily and excepting the report submitted to the Registrar of Companies, there is nothing on record to show that he was ever made permanent. The service of this appellant as French Translator has been dispensed with as no project in French speaking country is with the IRCON. In the face of it, the action of the IRCON in dispensing with the services of this appellant cannot be said to be illegal or arbitrary.16. As the High Court has not gone into the claim of the appellants for payment of compensation for denying air passage and claim of promotion of appellant Rameshwar Dayal, we are not inclined to look into these grievances in present appeals.17. To put the record straight, Mr. Khadaria has referred to a large number of authorities which have no relevance at all to the issues involved in these appeals and accordingly we do not consider it expedient to incorporate the same.
### Response:
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### Explanation:
We do not find any substance in the submission of Mr. Khadaria and the reliance placed by him on the decisions of the Board of Directors of the IRCON dated 3rd March, 1982 and 10th January, 1983 are misconceived and have no bearing so far as the claim of emoluments is concerned. Undisputedly, emoluments of these appellants were fixed after the aforesaid Resolution of the Board of Directors. Their emoluments therefore shall be governed by the terms and conditions agreed upon. It is relevant here to state that the appellants claim parity with two persons who were sent to Algeria as Chartered Accountant and Engineer (Technical Officers). Appellants were working as French Translators and, therefore, they cannot claim parity on the basis of similarity in the scale of pay when they belong to a different category. As rightly observed by the Division Bench of the High Court that once the appellants have entered into an agreement they cannot go back and claim for higher emoluments.Having appreciated the rival submission, we do not find any substance in the submission of Mr. Khadaria. This appellant was appointed temporarily and excepting the report submitted to the Registrar of Companies, there is nothing on record to show that he was ever made permanent. The service of this appellant as French Translator has been dispensed with as no project in French speaking country is with the IRCON. In the face of it, the action of the IRCON in dispensing with the services of this appellant cannot be said to be illegal or arbitrary.16. As the High Court has not gone into the claim of the appellants for payment of compensation for denying air passage and claim of promotion of appellant Rameshwar Dayal, we are not inclined to look into these grievances in present appeals.17. To put the record straight, Mr. Khadaria has referred to a large number of authorities which have no relevance at all to the issues involved in these appeals and accordingly we do not consider it expedient to incorporate the same.
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Shivanand Gaurishankar Baswanti Vs. Laxmi Vishnu Textile Mills & Others | and cannot be regarded as illegal or otherwise unreasonable. EQUITABLE JURISDICTION UNDER ARTICLE 136 49. There is one more reason for not interfering with the order passed by the High Court and impugned in the present appeal. The appellant has invoked Article 136 of the Constitution. The said Article does not confer a right of appeal on any party. It merely confers discretionary power on this Court to grant special leave to appeal in suitable and appropriate cases. In several cases, this Court has held that the provision confers right on a litigant merely to prefer an application seeking leave to appeal and the discretion is vested in this Court to grant or refuse such leave in its wisdom. In view of the language of Article 136, this Court is not expected to act as `regular Court of appeal settling disputes by converting into a `Court of Error. It interferes only when justice demands intervention by the highest Court of the country. 50. It is undoubtedly true that the power of this Court is plenary, overriding and extensive and there are no words qualifying, restricting or limiting that power. The very conferment of discretionary power defies any attempt at exhaustive definition of that power. The power, however, has to be exercised for doing full and complete justice. But wider the discretionary power, the more sparing its exercise. Times out of number this Court has stressed that though parties promiscuously provoke this jurisdiction, the Court parsimoniously invokes the power [vide Sadhanathan v. Arunachalam, (1980) 3 SCC 141 ]. 51. While exercising power under Article 136 of the Constitution, this Court not only acts as a Court of law but also as a Court of equity and hence the power exercised by this Court under Article 136 must subserve ultimately the cause of justice. The Court must decide all issues coming before it on the considerations of justice, equity and good conscience. Legal formulations cannot be divorced from ground realities, fact-situations before the Court and the effect of laws on the human beings for whom they are meant. Discretionary jurisdiction under Article 136, therefore, has to be tampered with equity. This Court would be failing in its duty if it does not notice equitable considerations. 52. We are reminded of the following pertinent and instructive observations of Lord Watson in La Cite de Montreal v. Les Eccelesiasticues, (1889) 14 AC 660. Cases vary so widely in their circumstances that the principle upon which an appeal ought to be allowed do not admit of anything approaching to exhaustive definition. No rule can be laid down which would not necessarily be subject to future qualification, and an attempt to formulate any such rule might therefore prove misleading... A case may be of a substantial character, may involve matter of great public interest, and may raise an important question of law, yet the judgment from which leave to appeal is sought may appear to be plainly right, or at least to be unattended with sufficient doubt to justify. 53. As observed by this Court in Statesman Ltd. v. Workmen, (1976) 2 SCC 223 , the very width of the power under Article 136 is a warning against its `freewheeling exercise save in grave situations. Circumspection and circumscription must, therefore, induce the Court to interfere with the decision under challenge only if the extraordinary flaws or grave injustice or other recognized grounds are made out. 54. We have elaborately dealt with the facts of the present case. Respondent No.1-- Company was closed down in February, 1995. It never started functioning thereafter. Financial liability continued mounting up day by day. There were several secured and unsecured creditors and dues of workers. Proceedings under SICA had been initiated, decrees and orders were passed against the Company and the property owned by the Company was not sufficient to clear up all debts and liabilities. Keeping in view the entire facts and circumstances that initially, tripartite agreement was entered into between respondent No.1-Company, Representative Union and intending purchaser on March 8, 2005, a joint meeting was held between secured and unsecured creditors, representatives of the Union, the Company and the purchaser in April, 2005 and in that meeting, One Time Settlement (OTS) had been reached. Several actions were taken in pursuance of the settlement. The amount was deposited by the purchaser, dues of creditors were paid, workers and laborers were informed and they were also paid the amount. The property was sold by respondent No.1 to respondent No.7 on October 6, 2005, sale was confirmed on December 6, 2005, possession of the property was given to respondent No.7 on December 14, 2005, sale certificate was issued on January 20, 2006, respondent No.7 got the property registered in its name on January 30, 2006 by paying stamp duty of Rs.2.25 crores, secured creditors gave discharge to respondent No.1-Company on March 30, 2007. By May 17, 2007, 4054 workers were paid and the said figure, at the time of hearing of this appeal reached to 4105. It was also stated by respondent No.7-purchaser that plant and machinery were removed and sold as scrap materials. 55. If, at this stage, we set aside sale in favour of respondent No.7, serious prejudice will be caused not only to respondent No.1 and respondent No.7--vendor and vendee, respectively, but also to others like banks, financial institutions, other creditors and also to workers for whose benefit and welfare the appellant is fighting. It is pertinent to note that no secured or unsecured creditor has come forward making grievance that though he was entitled to more amount, he has not been paid such amount. So far as workers are concerned, we have already dealt with rights of Representative-Union in detail and have held that the Representative Union has preferential right to appear in the proceedings under the Act. Hence, taking any view of the matter, in our opinion, this is not a fit case to exercise discretionary and equitable jurisdiction under Article 136 of the Constitution. FINAL ORDER | 0[ds]MERITS OF THE MATTER18. On merits also, we find no substance in the contention raised by the learned counsel for the appellant. From the record, it is clear that from eighties the respondent No. 1- Company was in financial doldrums. Day-by-day, the position deteriorated and it had incurred heavy losses. So much so that the Mill was required to be closed down somewhere in 1995. Admittedly, after February, 1995, the Company has never revived. It is also clear from the record that substantial amount was due and payable by the Company to State Bank of India, several other financial institutions, secured and unsecured creditors and to workers. Proceedings had been initiated under SICA. BIFR had passed orders from time to time and finally it recommended winding up of the Company on being satisfied that rehabilitation of the Company was not possible. A recommendation was, therefore, made and papers were forwarded to the High Court concerned, i.e. the High Court of Judicature at Bombay. It is further clear that in favour of one major creditors, i.e. State Bank of India a decree was passed by DRT-I, Mumbai for Rs.84.39 crores with interest thereon. It has been brought on record that several other financial institutions had approached DRT and either orders were passed in their favour or proceedings were pending. It is brought to our notice that many workers had gone to Controlling Authority under the Payment of Gratuity Act, 1972 and obtained orders in their favour directing the first respondent Company to pay gratuity with interest thereon. The Company was not in a position to pay entire dues. In the circumstances, DRT-I, Mumbai ordered to take appropriate steps so that joint meeting of all financial institutions and representatives of workers be held and the matter could be settled. Meanwhile, respondent No. 7-Trans Asia Global Trade expressed its desire to purchase the property. On March 8, 2005, a tripartite agreement had been arrived at between respondent No. 1-Company, representatives of respondent No.8-Union of workers and Trans Asia Global Trade-intending purchaser. In the agreement it was stated that the Company had huge liability and there were several secured creditors. The property owned by the Company was not enough to meet with all liabilities. The representatives of respondent No.8 Union were aware of the said fact and agreed to accept amount of Rs.22.21 crores towards full and final settlement of dues of workers. Respondent No. 7 decided to purchase the property for Rs.46.65 crores. The agreement was executed on March 8, 2005 and signed by all the three parties to the agreement, i.e. by the Mill-Company, by the purchaser of property and also by representatives of respondent No.8 Union. A joint meeting of secured and unsecured creditors was also held on April 20, 2005 wherein secured and unsecured creditors of the first respondent-Company agreed to share sale proceeds of Rs.46.65 crores by accepting and finalizing One Time Settlement (OTS). Final decision was taken on the basis of the agreement arrived at earlier on March 8, 2005. It was decided to sell the property to respondent No.7 for Rs.46.65 crores. The amount which was to be paid as per the final agreement19. On October 6, 2005, an order was passed by Recovery Officer, DRT-I, Mumbai in which all the above facts had been stated. The Recovery Officer referred to tripartite agreement and payment of amount to creditors and workers. The order also recited that as per the direction of the High Court, the workers claim was to be adjudicated by DRT. The applicant Bank was, therefore, directed to issue advertisement and invite workmen as per the guidelines formulated by DRT. All the workers were directed to lodge their claims in appropriate format in the Tribunal and all such claims were ordered to be placed before the Presiding Officer for adjudication20. Regarding valuation of property, it was stated;the valuation was done in the year 2002, before considering the proposal, the property was valued again from the approved valuer from the panel of DRT. According to the valuation report, offer of the purchaser is above the distress valuation price21. It was mentioned that the Tribunal accepted the offer of M/s Trans Asia Global Trade for purchasing movable and immovable property of the Company in the custody of Receiver appointed by DRT for an amount of Rs.47.82 crores. The auction-purchaser had deposited the amount of Rs.47,81,57,777 towards sale consideration and other expenses. The recovery officer directed the purchaser to pay balance amount. The matter was adjourned for confirmation of sale. An order was passed to send report to BIFR after confirmation of sale. The above order has not been challenged by the appellant in accordance with the provisions of 1993 Act22. On December 6, 2005, again, the matter was placed before the Recovery Officer, DRT-I, Mumbai. Reference was made to all proceedings, settlement arrived at between the parties and sale of property for Rs.47.82 crores. It was noted that no objection had been received from any person under Rule 60, 61 or 62 of the Second Schedule to the Income Tax Act, 1961 for setting aside sale and the sale was required to be confirmed. Accordingly, the sale was confirmed. Even this order was not challenged under the Act23. On January 20, 2006, the Recovery Officer, DRT-I, Mumbai issued a sale certificate for immovable property for Rs.45 crores in favour of respondent No.7-Purchaser. Another certificate of sale for movable properties for Rs.2.82 crores was issued by DRT. Those orders have remained unchallenged except in the present proceedings26. But even on merits, the impugned action calls for no interference. The order dated April 28, 1994 passed by BIFR reads as under;a draft scheme for rehabilitation of M/s Laxmi Vishnu Textile Mills has been prepared, circulated and published by the Board under Section 18 of the Sick Industrial Companies (Special Provisions) Act, 1935 in pursuance of its proceedings held/orders face in the case on 14.2.1994And whereas, the Board is of the opinion that in the interest of rehabilitation of the sick industrial company, creditors, shareholders as also in public interest, it is necessary to direct the existing promoters/management of sick industrial company; M/s Laxmi Vishnu Textile Mills not to disposed of, except with the consent of the Board, any of its fixed and other assets charged/hypothecated to the financial institutions, banks and other creditors, the board, in exercise of powers conferred on it by Section 22A of the Sick Industrial Companies (Special Provisions) Act, 1985 hereby directs the existing promotersmanagement is invited to the provisions of Section 33, where under violation of any of the orders of the Board is punishable in the manner laid down therein27. Plain reading of the order makes it clear that the Board was of the opinion that in the interest of rehabilitation of the sick industrial company, its creditors, shareholders as also in public interest, certain directions were necessary. The Company was, therefore, restrained from disposing the property which was charged /hypothecated to financial institutions. The submission of the learned counsel for the contesting respondents is that there was no question of revival of the Company in view of order passed by BIFR in 1996 and its recommendation for winding up of the Company. Regarding interests of creditors and other persons, it was stated that in March, 2005, tripartite agreement had been arrived at wherein representatives of labour Union, first respondent-Mill Company and the purchaser were present and the agreement was signed by all of them. Likewise, in April, 2005, joint meeting of secured and unsecured creditors, representatives of Union and vendor and vendee was held and all of them agreed for OTS and expressed their willingness to accept lesser amount. In the circumstances, charge imposed and prohibition issued by BIFR on the Company no more remained operative. On October 6, 2005, therefore, it was observed by the Recovery Officer of DRT-I, Mumbai to send information to BIFR after confirmation of sale. Consequential action of confirmation of sale was thereafter taken on December 6, 2005 and sale certificate was also issued on January 20, 2006. All the actions were taken only after March/April 2005. They, therefore, could not be said to be contrary to law or in violation of the order passed by BIFR28. Even otherwise, on the facts and in the circumstances of the case, we are fully satisfied that had the agreements in question not been arrived at, all parties including workers for whom great concern had been shown by the appellant would have suffered. In fact, in an affidavit filed on behalf of the State Bank of India, it was stated that in the light of the decree passed in favour of State Bank of India by DRT-I, Mumbai, the Bank would be entitled to Rs.222.34 crores. Similarly, other institutions were also entitled to substantial amount. It was because of conjoint and combined efforts of all the parties that agreements could be arrived at. It was stated that a Cabinet Minister used his good offices and One Time Settlement (OTS) had been arrived with Banks and financial institutions and workmen were able to get the amount which had not been paid to them for many years. The contention that secured and unsecured creditors and workers have not received their dues has no force29. Again, who has approached this Court?Neither a secured nor an unsecured creditorNor a representative of a labour union. Nor even a person acting pro bono publico. As already adverted to earlier, PIL Writ Petition at the instance of the appellant was dismissed by the High Court and the said decision was never challenged by him. Here is an employee who is also one of the workers, who has been paid his dues. He accepted the amount of Rs.62,555/- and issued `No Objection Certificate (No Dues Certificate) -no doubt by putting an endorsement32. Even this contention has no force. The learned counsel for the Union, in our opinion, is right in submitting that under the Bombay Industrial Relations Act, 1946, it is the `Representative Union which has all powers to enter into a settlement on behalf of workers in the industry and it is only that Union which can take a decision under 1946 Act. The said decision would bind not only the members of the Union, but also to those workers who are not members of such Union33. The learned counsel, in this connection, invited our attention to various provisions of 1946 Act. As the Preamble of the Act declares, the Act has been enactedo regulate the relations of employers and employees, to make provision for settlement of industrial disputes and to provide for certain other. The Act contains elaborate provisions for registration of Unions and their powers47. Respondent No.8 in its affidavit asserted that it is a Representative Union under the Act of 1946, in Textile Industry in Sholapur Municipal Corporation Area. It was further stated that once a Representative Union exists in any industry in a given local area, it alone has the exclusive right to represent the entire class of workmen in that industry in the concerned local area. In the instant case in the local area of Solapur District, respondent No. 8 is admittedly the only Union which has the status of Representative Union in Textile Industry under the Act. In view of the above fact, no other Union/Association of employees or individual employees have right to represent the workmen of that industry in that area48. In the counter-affidavit, it was stated by the Representative Union that there were about 4500 employees in respondent No.1 Mill when it was closed down in February, 1995. Within a period of about a decade, 400 workmen had already died. None of them, however, received any wages or other benefits because of the pendency of several proceedings in different courts. The Representative Union considered their legitimate grievance and thought it proper to get the matter settled if reasonable amount could be paid to them, keeping in view well-known sayinge in hand is better than two on. They considered the matter in its entirety, financial condition of the first respondent-Company, claim of secured and unsecured creditors, a number of decrees and orders passed by various Authorities under different laws and the properties of the Company. In the larger interest, the Union decided to accept the amount of Rs.22.21 crores for workers towards full and final settlement. By no stretch of imagination, such action could be held improper, illegal or mala fide. We are of the view that the approach adopted and decision taken by the Representative Union-respondent No.8 suffers from no infirmity and cannot be regarded as illegal or otherwise unreasonable | 0 | 11,041 | 2,343 | ### Instruction:
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and cannot be regarded as illegal or otherwise unreasonable. EQUITABLE JURISDICTION UNDER ARTICLE 136 49. There is one more reason for not interfering with the order passed by the High Court and impugned in the present appeal. The appellant has invoked Article 136 of the Constitution. The said Article does not confer a right of appeal on any party. It merely confers discretionary power on this Court to grant special leave to appeal in suitable and appropriate cases. In several cases, this Court has held that the provision confers right on a litigant merely to prefer an application seeking leave to appeal and the discretion is vested in this Court to grant or refuse such leave in its wisdom. In view of the language of Article 136, this Court is not expected to act as `regular Court of appeal settling disputes by converting into a `Court of Error. It interferes only when justice demands intervention by the highest Court of the country. 50. It is undoubtedly true that the power of this Court is plenary, overriding and extensive and there are no words qualifying, restricting or limiting that power. The very conferment of discretionary power defies any attempt at exhaustive definition of that power. The power, however, has to be exercised for doing full and complete justice. But wider the discretionary power, the more sparing its exercise. Times out of number this Court has stressed that though parties promiscuously provoke this jurisdiction, the Court parsimoniously invokes the power [vide Sadhanathan v. Arunachalam, (1980) 3 SCC 141 ]. 51. While exercising power under Article 136 of the Constitution, this Court not only acts as a Court of law but also as a Court of equity and hence the power exercised by this Court under Article 136 must subserve ultimately the cause of justice. The Court must decide all issues coming before it on the considerations of justice, equity and good conscience. Legal formulations cannot be divorced from ground realities, fact-situations before the Court and the effect of laws on the human beings for whom they are meant. Discretionary jurisdiction under Article 136, therefore, has to be tampered with equity. This Court would be failing in its duty if it does not notice equitable considerations. 52. We are reminded of the following pertinent and instructive observations of Lord Watson in La Cite de Montreal v. Les Eccelesiasticues, (1889) 14 AC 660. Cases vary so widely in their circumstances that the principle upon which an appeal ought to be allowed do not admit of anything approaching to exhaustive definition. No rule can be laid down which would not necessarily be subject to future qualification, and an attempt to formulate any such rule might therefore prove misleading... A case may be of a substantial character, may involve matter of great public interest, and may raise an important question of law, yet the judgment from which leave to appeal is sought may appear to be plainly right, or at least to be unattended with sufficient doubt to justify. 53. As observed by this Court in Statesman Ltd. v. Workmen, (1976) 2 SCC 223 , the very width of the power under Article 136 is a warning against its `freewheeling exercise save in grave situations. Circumspection and circumscription must, therefore, induce the Court to interfere with the decision under challenge only if the extraordinary flaws or grave injustice or other recognized grounds are made out. 54. We have elaborately dealt with the facts of the present case. Respondent No.1-- Company was closed down in February, 1995. It never started functioning thereafter. Financial liability continued mounting up day by day. There were several secured and unsecured creditors and dues of workers. Proceedings under SICA had been initiated, decrees and orders were passed against the Company and the property owned by the Company was not sufficient to clear up all debts and liabilities. Keeping in view the entire facts and circumstances that initially, tripartite agreement was entered into between respondent No.1-Company, Representative Union and intending purchaser on March 8, 2005, a joint meeting was held between secured and unsecured creditors, representatives of the Union, the Company and the purchaser in April, 2005 and in that meeting, One Time Settlement (OTS) had been reached. Several actions were taken in pursuance of the settlement. The amount was deposited by the purchaser, dues of creditors were paid, workers and laborers were informed and they were also paid the amount. The property was sold by respondent No.1 to respondent No.7 on October 6, 2005, sale was confirmed on December 6, 2005, possession of the property was given to respondent No.7 on December 14, 2005, sale certificate was issued on January 20, 2006, respondent No.7 got the property registered in its name on January 30, 2006 by paying stamp duty of Rs.2.25 crores, secured creditors gave discharge to respondent No.1-Company on March 30, 2007. By May 17, 2007, 4054 workers were paid and the said figure, at the time of hearing of this appeal reached to 4105. It was also stated by respondent No.7-purchaser that plant and machinery were removed and sold as scrap materials. 55. If, at this stage, we set aside sale in favour of respondent No.7, serious prejudice will be caused not only to respondent No.1 and respondent No.7--vendor and vendee, respectively, but also to others like banks, financial institutions, other creditors and also to workers for whose benefit and welfare the appellant is fighting. It is pertinent to note that no secured or unsecured creditor has come forward making grievance that though he was entitled to more amount, he has not been paid such amount. So far as workers are concerned, we have already dealt with rights of Representative-Union in detail and have held that the Representative Union has preferential right to appear in the proceedings under the Act. Hence, taking any view of the matter, in our opinion, this is not a fit case to exercise discretionary and equitable jurisdiction under Article 136 of the Constitution. FINAL ORDER
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the manner laid down therein27. Plain reading of the order makes it clear that the Board was of the opinion that in the interest of rehabilitation of the sick industrial company, its creditors, shareholders as also in public interest, certain directions were necessary. The Company was, therefore, restrained from disposing the property which was charged /hypothecated to financial institutions. The submission of the learned counsel for the contesting respondents is that there was no question of revival of the Company in view of order passed by BIFR in 1996 and its recommendation for winding up of the Company. Regarding interests of creditors and other persons, it was stated that in March, 2005, tripartite agreement had been arrived at wherein representatives of labour Union, first respondent-Mill Company and the purchaser were present and the agreement was signed by all of them. Likewise, in April, 2005, joint meeting of secured and unsecured creditors, representatives of Union and vendor and vendee was held and all of them agreed for OTS and expressed their willingness to accept lesser amount. In the circumstances, charge imposed and prohibition issued by BIFR on the Company no more remained operative. On October 6, 2005, therefore, it was observed by the Recovery Officer of DRT-I, Mumbai to send information to BIFR after confirmation of sale. Consequential action of confirmation of sale was thereafter taken on December 6, 2005 and sale certificate was also issued on January 20, 2006. All the actions were taken only after March/April 2005. They, therefore, could not be said to be contrary to law or in violation of the order passed by BIFR28. Even otherwise, on the facts and in the circumstances of the case, we are fully satisfied that had the agreements in question not been arrived at, all parties including workers for whom great concern had been shown by the appellant would have suffered. In fact, in an affidavit filed on behalf of the State Bank of India, it was stated that in the light of the decree passed in favour of State Bank of India by DRT-I, Mumbai, the Bank would be entitled to Rs.222.34 crores. Similarly, other institutions were also entitled to substantial amount. It was because of conjoint and combined efforts of all the parties that agreements could be arrived at. It was stated that a Cabinet Minister used his good offices and One Time Settlement (OTS) had been arrived with Banks and financial institutions and workmen were able to get the amount which had not been paid to them for many years. The contention that secured and unsecured creditors and workers have not received their dues has no force29. Again, who has approached this Court?Neither a secured nor an unsecured creditorNor a representative of a labour union. Nor even a person acting pro bono publico. As already adverted to earlier, PIL Writ Petition at the instance of the appellant was dismissed by the High Court and the said decision was never challenged by him. Here is an employee who is also one of the workers, who has been paid his dues. He accepted the amount of Rs.62,555/- and issued `No Objection Certificate (No Dues Certificate) -no doubt by putting an endorsement32. Even this contention has no force. The learned counsel for the Union, in our opinion, is right in submitting that under the Bombay Industrial Relations Act, 1946, it is the `Representative Union which has all powers to enter into a settlement on behalf of workers in the industry and it is only that Union which can take a decision under 1946 Act. The said decision would bind not only the members of the Union, but also to those workers who are not members of such Union33. The learned counsel, in this connection, invited our attention to various provisions of 1946 Act. As the Preamble of the Act declares, the Act has been enactedo regulate the relations of employers and employees, to make provision for settlement of industrial disputes and to provide for certain other. The Act contains elaborate provisions for registration of Unions and their powers47. Respondent No.8 in its affidavit asserted that it is a Representative Union under the Act of 1946, in Textile Industry in Sholapur Municipal Corporation Area. It was further stated that once a Representative Union exists in any industry in a given local area, it alone has the exclusive right to represent the entire class of workmen in that industry in the concerned local area. In the instant case in the local area of Solapur District, respondent No. 8 is admittedly the only Union which has the status of Representative Union in Textile Industry under the Act. In view of the above fact, no other Union/Association of employees or individual employees have right to represent the workmen of that industry in that area48. In the counter-affidavit, it was stated by the Representative Union that there were about 4500 employees in respondent No.1 Mill when it was closed down in February, 1995. Within a period of about a decade, 400 workmen had already died. None of them, however, received any wages or other benefits because of the pendency of several proceedings in different courts. The Representative Union considered their legitimate grievance and thought it proper to get the matter settled if reasonable amount could be paid to them, keeping in view well-known sayinge in hand is better than two on. They considered the matter in its entirety, financial condition of the first respondent-Company, claim of secured and unsecured creditors, a number of decrees and orders passed by various Authorities under different laws and the properties of the Company. In the larger interest, the Union decided to accept the amount of Rs.22.21 crores for workers towards full and final settlement. By no stretch of imagination, such action could be held improper, illegal or mala fide. We are of the view that the approach adopted and decision taken by the Representative Union-respondent No.8 suffers from no infirmity and cannot be regarded as illegal or otherwise unreasonable
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DR. J. VIJAYAN & OTHERS Vs. THE STATE OF KERALA & OTHERS | present. In the above context, it is necessary to notice that as per letter No. F.1- 7/2010-U.II dated 14.08.2012 of the MHRD (a copy of which has been handed over to us by the Counsel in the Court), it has been clarified that the issue regarding age of retirement has been left to the decision of the State Governments. Paragraph 5 that deals with the above aspect is extracted hereunder for convenience of reference : 5. Bearing in mind that the question of enhancement of age of retirement is exclusively within the domain of the policy making power of the State Governments, the issue of age of retirement has been left to the State Governments to decide at their level. The condition of enhancement of age of superannuation to 65 years as mentioned in this Ministrys letter dated 31.12.2008 may be treated as withdrawn, for the purpose of seeking reimbursement of central share of arrears to be paid to State University and College teachers. However, the other conditions as mentioned in the letter cited above shall continue to apply. Though a contention has been put forward by the counsel for the Appellants that, the condition has been withdrawn for the purpose of seeking reimbursement of the central share of arrears alone, we are not prepared to accept the same in view of the opening sentence in the said clause which declares in unambiguous terms that enhancement of age of retirement is exclusively within the domain of the powers of the State Government and that for the said reason, the issue of age of retirement has been left to the State Governments to decide at their level. *** 17. In the view that we have taken above, we do not consider it necessary to refer to or discuss the other decisions on which reliance has been placed. The question of fixing the retirement age of teachers is essentially a matter of policy. The said policy would have to be adopted by the State Government taking into account a number of factors. As contended before us by the learned Additional Advocate General, the State of Kerala does not suffer from a dearth of qualified candidates to be appointed as teachers. There are a large number of qualified teachers, including Ph.D. Holders who are waiting for employment. They are persons trained in advanced methods of instruction and teaching techniques. At the same time, teachers like the appellants who are approaching retirement age are not persons who could be described as aged or infirm. They are in their prime of life, endowed with the rich experience both in teaching as well as in guiding research projects. The wisdom of the decision to superannuate them at such a prime point of time in their lives is also questionable. A decision can be taken only by balancing both the above aspects as well as other relevant factors that may require to be taken into account. Such an informed decision would have to be taken by the law makers and not by courts. As at present, the UGC Regulations, 2010 cannot affect the State laws governing the age of superannuation. UGC Regulations have in recognition of the above position granted a discretion to the State to take a decision with respect to the manner of implementation of the Regulations. Accordingly, the State Government has decided not to enhance the age of retirement. We notice that, a similar claim for enhancement in retirement age has been considered by another Division Bench of this Court and rejected in Mathai M.M. vs. Elizabeth Xavier (2011) 2 K.L.T. 468. The said decision is also binding on us. 30. Learned counsel appearing on behalf of the Appellants referred to paragraphs 68 and 72 of the judgment of this Court in Jagdish Prasad Sharma (supra) set out hereinbelow :- 68. Another anxiety which is special to certain States, such as the States of Uttar Pradesh and Kerala, has also come to light during the hearing. In both the States, the problem is one of surplusage and providing an opportunity for others to enter into service. On behalf of the State of Kerala, it had been urged that there were a large number of educated unemployed youth, who are waiting to be appointed, but by retaining teachers beyond the age of 62 years, they were being denied such opportunity. As far as the State of U.P. is concerned, it is one of job expectancy, similar to that prevailing in Kerala. The State Governments of the said two States were, therefore, opposed to the adoption of the UGC Scheme, although, the same has not been made compulsorily applicable to the universities, colleges and other institutions under the control of the State authorities. *** 72. As far as the States of Kerala and U.P. are concerned, they have their own problems which are localised and stand on a different footing from the other States, none of whom who appear to have the same problem. Education now being a List III subject, the State Government is at liberty to frame its own laws relating to education in the State and is not, therefore, bound to accept or follow the Regulations framed by UGC. It is only natural that if they wish to adopt the Regulations framed by the Commission under Section 26 of the UGC Act, 1956, the States will have to abide by the conditions as laid down by the Commission. 31. It is not understood how those paragraphs are of assistance to the Appellant. There is no finding in paragraph 68, but only discussion of facts, which led to the decision, and paragraph 72 is clearly against the Appellants. This Court unequivocally held that the State was not bound to accept or follow the UGC Regulations. 32. It is well settled that a judgment is a precedent for the issue of law, which is raised and decided. Discussions in a judgment cannot be read out of context, and interpreted as the dictum of the Court. | 0[ds]25. The Single Bench found, and in our view rightly, that there was no change in the law after the judgment of this Court in Jagdish Prasad Sharma (supra).26. The Single Bench rightly noted that what was in issue before the Full Bench was Section 26 of the University Grants Commission Act and the Regulations framed under Clause (g) of Section 26, which dealt with regulation and maintenance of standards and the regulation of facilities in the Universities. The Single Bench was of the view that the decision could have no application in the case of statutory age of retirement as determined by the State of Kerala under Article 309 of the Constitution of India. The prescription of the age of superannuation of a faculty member could not affect the standards.27. As found by the Single Bench of the High Court, the decision to issue the Circular dated 14th August 2012, withdrawing the regulation regarding enhancement of the age of superannuation, was taken by the Central Government, in consultation with the States and in deference to the powers given to the States to prescribe the service conditions of its employees, which would fall within the ambit of policy decision, undisputedly within the exclusive domain of the respective State Governments. The Single Bench held that the Policy of the State Government, which is evidenced by the statutory provisions mandating teachers of aided affiliated colleges to retire at the age of 56 years, and that of the Universities at the age of 60 years, has been crystalized by enactments under Article 309 of the Constitution of India.28. The Division Bench of the High Court, after hearing the respective parties found, and rightly, that most of the issues raised in the appeals were concluded against the Appellants by the judgment and order of this Court in Jagdish Prasad Sharma (supra). The Division Bench observed that this Court had held that it was mandatory for the UGC to be guided by the directions issued by the Central Government on questions of policy relating to national purposes by discharging its functions under the UGC Act. The Division Bench found that the UGC was bound to follow the directions issued by the Central Government in view of Section 20 of the UGC Act.29. The Division Bench of the High Court also found that the State Governments had the discretion to accept the scheme proposed under the UGC Regulations relying on the judgment in Jagdish Prasad Sharma (supra) and in particular Paragraph 72, thereof. The Division Bench held:-14. It is in the light of the above authoritative pronouncement of the Apex Court, that the present contentions of the counsel for the appellants are required to be considered. The contention that the UGC Regulations were made in exercise of the power under Entry 66 List I Schedule VII of the Constitution, while the State enactments are made under Entry 25 List III Schedule VII and for the said reason, in the event of repugnancy, the Central enactment would prevail, has to fail for more reasons than one. In the first place, the State Laws prescribing the age of retirement of teachers are made in exercise of the power under Article 309 of the Constitution. The Apex Court has found Jagdish Prasad Sharma (supra) that such enactments would remain unaffected by the stipulations contained in the UGC Regulations. Secondly, it has been further held by the Court in the said decision that the UGC does not have any power to stipulate the service conditions of teachers. Therefore, such power is vested entirely in the State. Thirdly, obviously in recognition of the above position of law the UGC Regulations have conferred a discretion on the State Governments to decide whether to implement the Regulations or not. In view of the conferment of the discretion as noted above, no question of repugnancy arises in these cases. Therefore, we do not think it necessary to consider the above contention in any further detail.15. On the next contention that the Scheme under the UGC Regulations, 2010 has to be accepted in full as a composite one and that adoption of the Scheme without enhancing the retirement age of teachers was bad, we find that the said issue has been concluded by the Supreme Court. Though a similar contention was put forward in Jagdish Prasad Sharma (supra) with respect to the Government Order dated 10.12.2010, the same did not find favour with the Court. The said Government Order evidenced herein as Ext. P10 in W.A. No. 854 of 2016 provides at paragraph 6 as follows -6. Government are also pleased to order that where there are any provision in the Regulations inconsistent with the provisions in the G.O. read as 1st paper above, those provisions in the G.P. would override the provisions in the Regulations to the extent of such inconsistency.Reference No. 1 in the said Government Order is to G.O.(P) NO. 58/2010/H.Edn. Dated 27.3.2010 (Ext.P8 in W.A. No. 854 of 2016). It is the said Government Order that is directed to prevail as per Clause 6 extracted above. It has been ordered by the said Government Order that the age of superannuation shall continue as at present. In the above context, it is necessary to notice that as per letter No. F.1- 7/2010-U.II dated 14.08.2012 of the MHRD (a copy of which has been handed over to us by the Counsel in the Court), it has been clarified that the issue regarding age of retirement has been left to the decision of the State Governments. Paragraph 5 that deals with the above aspect is extracted hereunder for convenience of reference :5. Bearing in mind that the question of enhancement of age of retirement is exclusively within the domain of the policy making power of the State Governments, the issue of age of retirement has been left to the State Governments to decide at their level. The condition of enhancement of age of superannuation to 65 years as mentioned in this Ministrys letter dated 31.12.2008 may be treated as withdrawn, for the purpose of seeking reimbursement of central share of arrears to be paid to State University and College teachers. However, the other conditions as mentioned in the letter cited above shall continue to apply.Though a contention has been put forward by the counsel for the Appellants that, the condition has been withdrawn for the purpose of seeking reimbursement of the central share of arrears alone, we are not prepared to accept the same in view of the opening sentence in the said clause which declares in unambiguous terms that enhancement of age of retirement is exclusively within the domain of the powers of the State Government and that for the said reason, the issue of age of retirement has been left to the State Governments to decide at their level.17. In the view that we have taken above, we do not consider it necessary to refer to or discuss the other decisions on which reliance has been placed. The question of fixing the retirement age of teachers is essentially a matter of policy. The said policy would have to be adopted by the State Government taking into account a number of factors. As contended before us by the learned Additional Advocate General, the State of Kerala does not suffer from a dearth of qualified candidates to be appointed as teachers. There are a large number of qualified teachers, including Ph.D. Holders who are waiting for employment. They are persons trained in advanced methods of instruction and teaching techniques. At the same time, teachers like the appellants who are approaching retirement age are not persons who could be described as aged or infirm. They are in their prime of life, endowed with the rich experience both in teaching as well as in guiding research projects. The wisdom of the decision to superannuate them at such a prime point of time in their lives is also questionable. A decision can be taken only by balancing both the above aspects as well as other relevant factors that may require to be taken into account. Such an informed decision would have to be taken by the law makers and not by courts. As at present, the UGC Regulations, 2010 cannot affect the State laws governing the age of superannuation. UGC Regulations have in recognition of the above position granted a discretion to the State to take a decision with respect to the manner of implementation of the Regulations. Accordingly, the State Government has decided not to enhance the age of retirement. We notice that, a similar claim for enhancement in retirement age has been considered by another Division Bench of this Court and rejected in Mathai M.M. vs. Elizabeth Xavier (2011) 2 K.L.T. 468. The said decision is also binding on us.31. It is not understood how those paragraphs are of assistance to the Appellant. There is no finding in paragraph 68, but only discussion of facts, which led to the decision, and paragraph 72 is clearly against the Appellants. This Court unequivocally held that the State was not bound to accept or follow the UGC Regulations.32. It is well settled that a judgment is a precedent for the issue of law, which is raised and decided. Discussions in a judgment cannot be read out of context, and interpreted as the dictum of the Court. | 0 | 4,961 | 1,708 | ### Instruction:
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present. In the above context, it is necessary to notice that as per letter No. F.1- 7/2010-U.II dated 14.08.2012 of the MHRD (a copy of which has been handed over to us by the Counsel in the Court), it has been clarified that the issue regarding age of retirement has been left to the decision of the State Governments. Paragraph 5 that deals with the above aspect is extracted hereunder for convenience of reference : 5. Bearing in mind that the question of enhancement of age of retirement is exclusively within the domain of the policy making power of the State Governments, the issue of age of retirement has been left to the State Governments to decide at their level. The condition of enhancement of age of superannuation to 65 years as mentioned in this Ministrys letter dated 31.12.2008 may be treated as withdrawn, for the purpose of seeking reimbursement of central share of arrears to be paid to State University and College teachers. However, the other conditions as mentioned in the letter cited above shall continue to apply. Though a contention has been put forward by the counsel for the Appellants that, the condition has been withdrawn for the purpose of seeking reimbursement of the central share of arrears alone, we are not prepared to accept the same in view of the opening sentence in the said clause which declares in unambiguous terms that enhancement of age of retirement is exclusively within the domain of the powers of the State Government and that for the said reason, the issue of age of retirement has been left to the State Governments to decide at their level. *** 17. In the view that we have taken above, we do not consider it necessary to refer to or discuss the other decisions on which reliance has been placed. The question of fixing the retirement age of teachers is essentially a matter of policy. The said policy would have to be adopted by the State Government taking into account a number of factors. As contended before us by the learned Additional Advocate General, the State of Kerala does not suffer from a dearth of qualified candidates to be appointed as teachers. There are a large number of qualified teachers, including Ph.D. Holders who are waiting for employment. They are persons trained in advanced methods of instruction and teaching techniques. At the same time, teachers like the appellants who are approaching retirement age are not persons who could be described as aged or infirm. They are in their prime of life, endowed with the rich experience both in teaching as well as in guiding research projects. The wisdom of the decision to superannuate them at such a prime point of time in their lives is also questionable. A decision can be taken only by balancing both the above aspects as well as other relevant factors that may require to be taken into account. Such an informed decision would have to be taken by the law makers and not by courts. As at present, the UGC Regulations, 2010 cannot affect the State laws governing the age of superannuation. UGC Regulations have in recognition of the above position granted a discretion to the State to take a decision with respect to the manner of implementation of the Regulations. Accordingly, the State Government has decided not to enhance the age of retirement. We notice that, a similar claim for enhancement in retirement age has been considered by another Division Bench of this Court and rejected in Mathai M.M. vs. Elizabeth Xavier (2011) 2 K.L.T. 468. The said decision is also binding on us. 30. Learned counsel appearing on behalf of the Appellants referred to paragraphs 68 and 72 of the judgment of this Court in Jagdish Prasad Sharma (supra) set out hereinbelow :- 68. Another anxiety which is special to certain States, such as the States of Uttar Pradesh and Kerala, has also come to light during the hearing. In both the States, the problem is one of surplusage and providing an opportunity for others to enter into service. On behalf of the State of Kerala, it had been urged that there were a large number of educated unemployed youth, who are waiting to be appointed, but by retaining teachers beyond the age of 62 years, they were being denied such opportunity. As far as the State of U.P. is concerned, it is one of job expectancy, similar to that prevailing in Kerala. The State Governments of the said two States were, therefore, opposed to the adoption of the UGC Scheme, although, the same has not been made compulsorily applicable to the universities, colleges and other institutions under the control of the State authorities. *** 72. As far as the States of Kerala and U.P. are concerned, they have their own problems which are localised and stand on a different footing from the other States, none of whom who appear to have the same problem. Education now being a List III subject, the State Government is at liberty to frame its own laws relating to education in the State and is not, therefore, bound to accept or follow the Regulations framed by UGC. It is only natural that if they wish to adopt the Regulations framed by the Commission under Section 26 of the UGC Act, 1956, the States will have to abide by the conditions as laid down by the Commission. 31. It is not understood how those paragraphs are of assistance to the Appellant. There is no finding in paragraph 68, but only discussion of facts, which led to the decision, and paragraph 72 is clearly against the Appellants. This Court unequivocally held that the State was not bound to accept or follow the UGC Regulations. 32. It is well settled that a judgment is a precedent for the issue of law, which is raised and decided. Discussions in a judgment cannot be read out of context, and interpreted as the dictum of the Court.
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Regulations. Secondly, it has been further held by the Court in the said decision that the UGC does not have any power to stipulate the service conditions of teachers. Therefore, such power is vested entirely in the State. Thirdly, obviously in recognition of the above position of law the UGC Regulations have conferred a discretion on the State Governments to decide whether to implement the Regulations or not. In view of the conferment of the discretion as noted above, no question of repugnancy arises in these cases. Therefore, we do not think it necessary to consider the above contention in any further detail.15. On the next contention that the Scheme under the UGC Regulations, 2010 has to be accepted in full as a composite one and that adoption of the Scheme without enhancing the retirement age of teachers was bad, we find that the said issue has been concluded by the Supreme Court. Though a similar contention was put forward in Jagdish Prasad Sharma (supra) with respect to the Government Order dated 10.12.2010, the same did not find favour with the Court. The said Government Order evidenced herein as Ext. P10 in W.A. No. 854 of 2016 provides at paragraph 6 as follows -6. Government are also pleased to order that where there are any provision in the Regulations inconsistent with the provisions in the G.O. read as 1st paper above, those provisions in the G.P. would override the provisions in the Regulations to the extent of such inconsistency.Reference No. 1 in the said Government Order is to G.O.(P) NO. 58/2010/H.Edn. Dated 27.3.2010 (Ext.P8 in W.A. No. 854 of 2016). It is the said Government Order that is directed to prevail as per Clause 6 extracted above. It has been ordered by the said Government Order that the age of superannuation shall continue as at present. In the above context, it is necessary to notice that as per letter No. F.1- 7/2010-U.II dated 14.08.2012 of the MHRD (a copy of which has been handed over to us by the Counsel in the Court), it has been clarified that the issue regarding age of retirement has been left to the decision of the State Governments. Paragraph 5 that deals with the above aspect is extracted hereunder for convenience of reference :5. Bearing in mind that the question of enhancement of age of retirement is exclusively within the domain of the policy making power of the State Governments, the issue of age of retirement has been left to the State Governments to decide at their level. The condition of enhancement of age of superannuation to 65 years as mentioned in this Ministrys letter dated 31.12.2008 may be treated as withdrawn, for the purpose of seeking reimbursement of central share of arrears to be paid to State University and College teachers. However, the other conditions as mentioned in the letter cited above shall continue to apply.Though a contention has been put forward by the counsel for the Appellants that, the condition has been withdrawn for the purpose of seeking reimbursement of the central share of arrears alone, we are not prepared to accept the same in view of the opening sentence in the said clause which declares in unambiguous terms that enhancement of age of retirement is exclusively within the domain of the powers of the State Government and that for the said reason, the issue of age of retirement has been left to the State Governments to decide at their level.17. In the view that we have taken above, we do not consider it necessary to refer to or discuss the other decisions on which reliance has been placed. The question of fixing the retirement age of teachers is essentially a matter of policy. The said policy would have to be adopted by the State Government taking into account a number of factors. As contended before us by the learned Additional Advocate General, the State of Kerala does not suffer from a dearth of qualified candidates to be appointed as teachers. There are a large number of qualified teachers, including Ph.D. Holders who are waiting for employment. They are persons trained in advanced methods of instruction and teaching techniques. At the same time, teachers like the appellants who are approaching retirement age are not persons who could be described as aged or infirm. They are in their prime of life, endowed with the rich experience both in teaching as well as in guiding research projects. The wisdom of the decision to superannuate them at such a prime point of time in their lives is also questionable. A decision can be taken only by balancing both the above aspects as well as other relevant factors that may require to be taken into account. Such an informed decision would have to be taken by the law makers and not by courts. As at present, the UGC Regulations, 2010 cannot affect the State laws governing the age of superannuation. UGC Regulations have in recognition of the above position granted a discretion to the State to take a decision with respect to the manner of implementation of the Regulations. Accordingly, the State Government has decided not to enhance the age of retirement. We notice that, a similar claim for enhancement in retirement age has been considered by another Division Bench of this Court and rejected in Mathai M.M. vs. Elizabeth Xavier (2011) 2 K.L.T. 468. The said decision is also binding on us.31. It is not understood how those paragraphs are of assistance to the Appellant. There is no finding in paragraph 68, but only discussion of facts, which led to the decision, and paragraph 72 is clearly against the Appellants. This Court unequivocally held that the State was not bound to accept or follow the UGC Regulations.32. It is well settled that a judgment is a precedent for the issue of law, which is raised and decided. Discussions in a judgment cannot be read out of context, and interpreted as the dictum of the Court.
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RAMESHWAR AND ORS Vs. STATE OF HARYANA & ORS | Rs. 15 crores and was entitled to a share of receipts of developed units sold. 38. The main judgment of this Court has carefully considered and gone into great lengths to examine the file notings which led to the final decision of the State not to acquire such lands. In the case of Frontier, the records clearly demonstrate that a noting was approved by the State Government at the highest level that All India Service Officers of the Jammu & Kashmir cadre had requested for lands for their residential housing society. This request was the main basis for the decision not to acquire Frontiers lands which was the subject matter of License No. 88 of 2008. After said decision, Frontier parted with all its rights to Godrej, as did the owners of other parcels of land, i.e., Balbir Singh and Ram Pyari. These facts clearly demonstrate how the entire state machinery was subverted. The collaboration agreement with Godrej shows that 50 residential units were committed to the Jammu & Kashmir cadre of All India Service Officers (just above 10% of the total number of flats ultimately constructed). Likewise, in the case of Paradise, Frontier and Karma too, entering into collaboration agreements and the seeking grant of licenses formed the basis for the States final decision not to go ahead with the acquisition even though a declaration under Section 6 had been published. 39. It is clear that the collaboration agreements formed the first element of a two-step process whereby the colonizers / developers (who might have been also land owners) having acquired lands, prior to the preliminary notification, went ahead and entered into commitments by executing collaboration agreements after the notification under Section 4, and even declaration under Section 6, with full knowledge. The consideration for parting with developmental rights was far higher than the market value of the lands which they would have been entitled to. These acts ultimately culminated with the decision not to acquire the lands. The second step – and the important one persuading the State not to acquire the lands (In the case of Frontier Developers (earlier known as Conway), the request for de-notification was made, by a letter dated 17.08.2007, to the state of Haryana - a fact noted in the status report filed by the Enforcement Directorate (hereinafter, ED) before the Court)- was the application for, and the grant of, development licenses. Uniformly, in all these cases, the applications were made prior to the scheduled date of publication of the award (26.08.2007). This is a significant and tell-tale factor because there was no way the applicants would have ordinarily known that an award would not be pronounced on the concerned date. In fact, the application clearly indicates foreknowledge that their lands would not be ultimately acquired. This is what may be characterized as the proverbial smoking gun which establishes the complicity of these individuals and entities. 40. Land ownership typically carries with it a bundle of rights. A landowner has the right to possess, sell, lease, develop, sub-let, occupy, etc. On an overall analysis of the common features of all the collaboration agreements as carried out in an earlier part of the judgment, it is evident that except for the empty husk of a title, the land owner parted with predominant and substantial rights over the property, including possession. In almost all the cases, these rights were parted for consideration which was far above the notified acquisition rates. This observation applies in the case of the two companies – Frontier and Karma, who continued to be the land owners of the land. Such emptying out of all important attributes that constitute rights and interest over the property cannot but be viewed as a transfer. To hold otherwise would mean that after receiving substantial amounts – equal to many times over the existing market rates (that could ordinarily have been claimed by the landowner in respect of their holding in acquisition proceedings) – and entitling the developer to create third-party rights in respect of not a few but hundreds of people, nevertheless, the landowner could still hold out and claim their right to not part with the title. Such a conclusion would defy reason and commonsense and cannot be countenanced. In the circumstances, it is held that the collaboration agreements in all these cases which ultimately culminated in the grant of licenses would fall within the mischief of the term transfer as envisioned in the main judgment, as it foreclosed the enjoyment and possession by the landowner, who willingly parted with such rights, for valuable consideration and acquiesced to irreversible changes on it. 41. The above observations are dispositive of the issue. However, this Court cannot be oblivious to the existing state of affairs. The collaboration agreement entered into between Paradise and Green Heights and Frontier and Balbir Singh and Ram Pyari with Godrej have led to construction of units. This Court has been shown materials which establish that in the case of Green Heights, the number of constructed units is 438 (of which 371 have been sold) and in the case of Godrej, the constructed units is 567. It is also on record that Green Heights has received Rs. 70.92 crores as against sale value of agreements. Likewise, there is no denial of the fact that Godrej has also received substantial amounts in the range of Rs. 300 crores towards its residential units sold. In these circumstances, the Court would have to strike a proper balance and protect the interests of such third-party consumers to ensure that they do not suffer on account of the past sins of the colonizers / developers or land owners, as the case may be. 42. The main judgment recorded that in another transaction, one of the colonizers / developers had paid Rs. 4.5 crores per acre at the relevant time (in 2009). During the hearing, learned counsel for the State mentioned that the current value of these contiguous land is to the tune of Rs. 5.3 crores. | 0[ds]In these cases, undoubtedly transfer of such rights was done after the lands were notified under Section 4 (except in the case of Karma where apart from the original development agreement dated 16.02.2004, a supplementary agreement was entered later into on 24.12.2006). Additionally, soon after the collaboration agreements were executed, licenses were applied for and issued (License Nos. 88 of 2008, 59 of 2009 and 206 of 2008) after the declaration under Section 6 but before the States final decision to not acquire the lands on 29.01.2010.31. The following are the features common to all the collaboration agreements:i. Possession was handed over to the colonizer / developer;ii. Full rights of development – the nature, the kind of colony or group housing units to be constructed as well as their numbers were at the absolute discretion of the colonizer / developer;iii. Substantial amounts were paid to the land owner (and in the case of Frontier, in addition to the original landowners, the intervening developer as well, such as Earl);iv. Wherever intervening rights existed (such as those of Frontier which had already committed to allot a certain number of developed or constructed units to third parties) the ultimate developer (such as Godrej) took over such liability;v. The landowners, and wherever applicable, the intervening developer, were in addition, entitled to a share in the proceeds and to a certain number of units of constructed or developed lands defined specifically in the agreement;vi. Power of attorney documents were executed in favour of the colonizer / developer, to facilitate the latters intent to develop the lands;vii. The consideration paid to landowners in all these cases far exceeded the market value of the lands, prevailing at the time of the notification under Section 4;viii. The landowner – and wherever applicable, the intervening colonizer / developer – executed registered power of attorneys to the final developer, and in all cases agreed to execute registered sale deeds to the allottees of the colonizer / developer as and when called upon to do so; andix. In some cases, on the strength of these collaboration agreements, licenses were applied for by the landowner or by the intervening developer.32. The nature of collaboration agreements has been discussed by this Court in Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr. (2008) 10 SCC 345 In this case, the parties had entered into a collaboration agreement for the construction of a residential building. The usual conditions, such as handing over possession, non-interference in the project, handing over title documents to enable sale of constructed units to third parties, etc. were agreed to. Holding that the Consumer Protection Act, 1986 was applicable to the collaboration agreement, and that the parties could not be viewed as constituting a joint venture given the power inequality between them, this Court held as follows:27. What then is the nature of the agreement between the appellant and the first respondent? The appellant is the owner of the land. He wants a new house, but is not able to construct a new house for himself either on account of paucity of funds or lack of expertise or resources. He, therefore, enters into an agreement with the builder. He asks the builder to construct a house and give it to him. He says that as he does not have the money to pay for the construction and will, therefore, permit the builder to construct and own additional floor(s) as consideration. He also agrees to transfer an undivided share in the land corresponding to the additional floor(s) which falls to the share of the builder. As a result, instead of being the full owner of the land with an old building, he becomes a co-owner of the land with a one-third share in the land and absolute owner of the ground floor of the newly constructed building and agrees that the builder will become the owner of the upper floors with corresponding two-third share in the land. As the cost of the undivided two-third share in the land which the landowner agrees to transfer to the builder, is more than the cost of construction of the ground floor by the builder for the landowner, it is also mutually agreed that the builder will pay the landowner an additional cash consideration of Rs 8 lakhs.28. The basic underlying purpose of the agreement is the construction of a house or an apartment (ground floor) in accordance with the specifications, by the builder for the owner, the consideration for such construction being the transfer of undivided share in land to the builder and grant of permission to the builder to construct two floors. Such agreement whether called as a collaboration agreement or a joint venture agreement, is not, however, a joint venture. There is a contract for construction of an apartment or house for the appellant, in accordance with the specifications and in terms of the contract. There is a consideration for such construction, flowing from the landowner to the builder (in the form of sale of an undivided share in the land and permission to construct and own the upper floors). To adjust the value of the extent of land to be transferred, there is also payment of cash consideration by the builder. But the important aspect is the availment of services of the builder by the landowner for a house construction (construction of the owners share of the building) for a consideration. To that extent, the landowner is a consumer, the builder is a service provider and if there is deficiency in service in regard to construction, the dispute raised by the landowner will be a consumer dispute. We may mention that it makes no difference for this purpose whether the collaboration agreement is for construction and delivery of one apartment or one floor to the owner or whether it is for construction and delivery of multiple apartments or more than one floor to the owner. The principle would be the same and the contract will be considered as one for house construction for consideration. The deciding factor is not the number of apartments deliverable to the landowner, but whether the agreement is in the nature of a joint venture or whether the agreement is basically for construction of certain area for the landowner.33. The above judgment, while clarifying the purpose of collaboration agreements, falls short of delving into the legal effects of the transfer of such development rights. Parting with rights which are fundamental to ownership, for valuable consideration (in cash or by handing over constructed units), leaving only the nominal title with the landowner, is a common feature of such collaboration agreements. Given the evolution in complexity of real estate contracts, and the absence of the definition of collaboration agreements in legislation, their interpretation by various High Courts assumes significance. In a question pertaining to the applicability of the Specific Relief Act, 1963 to such contracts, a Full Bench of the Calcutta High Court in Ashok Kumar Jaiswal v. Ashim Kumar Kar AIR 2014 Cal 92 . while addressing the nature of development agreements, also answered the question in affirmative:45. This leads to the unavoidable discussion as to what may be regarded as a Development Agreement as referred to in the questions framed for the reference and the Judgments of this Court cited by the parties. Without intending the discussion to be an exhaustive treatise on Development Agreements of all hues, it may be recognized there can be several Agreements, which can be loosely described as Development Agreements in the sense that such expression has been used in the judgments cited in course of the present proceedings. An owner without any funds or the independent resources to construct a new building on such owners land may engage another for such purpose with the consideration for the construction being paid by allocation of a part of the constructed area. There could be several variants of the same basic structure of a Development Agreement with the Agreement either providing for the owner being entitled to a sum of money in addition to a specified share in the constructed area or with a Developer being required to rid the land of its encumbrances, whether monetary or otherwise, prior to the construction being taken up. There may be other similar Agreements under which the Developer is required to temporarily relocate an existing tenant or occupant and ultimately provide the tenant or occupant a part of the constructed area. In the context in which certain Agreements pertaining to the construction of new buildings contemplate the construction to be undertaken or orchestrated by a person other than the owner of the land, whether upon the demolition of the existing structure or otherwise, with such person other than the owner having a share in the constructed area, such Agreements have now come to be regarded as Development Agreements. Whether or not such Agreements are in the nature of collaboration or joint venture, they are loosely referred to as Development Agreements in several Judgments. Such Agreements are not merely for the construction of any building or for the mere execution of any other work on the land. The Developer is not merely a Contractor engaged to undertake the construction; the Developer is, under the Agreement with the owner, promised a part of the constructed premises as owner thereof together with the proportionate area of the land. In the context in which certain Agreements are referred to as Development Agreements and the non-owner party to such an Agreement is regarded as the Developer qua the nature of the work envisaged under the Agreement, the Developer always has a share in the building or the area proposed to be constructed – which implies a proportionate share of the piece of earth – and such Agreement envisages the Developer to have a share of, and interest in, the final product which is the outcome of the Agreement.46. In such sense, a Development Agreement which envisages the party thereto other than the owner being responsible for ensuring the construction of a building on the subject land and having a share therein, there is an inescapable contract to transfer immovable property. In form, a Development Agreement which envisages the Developer to have a share in the building proposed to be constructed in terms of the Agreement, the Agreement may appear to be somewhat not resembling an Agreement for transfer of an immovable property; and, indeed, it is not an Agreement simpliciter for sale of an immovable property. In law, however, a Development Agreement of the kind described herein entails the transfer of immovable property in the sense that the Developer or an assignee of the Developer, at the instance of the Developer, would be entitled not only to a part of the constructed area but the proportionate share of the land on which the construction is made.34. Thus, collaboration agreements which enable the colonizer / developer to retain a significant portion of the constructed area as consideration, are not in the nature of pure construction contracts. An analysis of these agreements depicts the transfer of crucial rights and interests in the property, which otherwise are enjoyed only by the landowner, falling short only in respect of the title.36. The recognition of transfer of valuable rights by collaboration agreements was also commented upon in Unitech Ltd. v. Union of India (2016) 2 SCC 569, wherein this Court was concerned with whether a collaboration agreement constituted transfer of property under Chapter XX-C of the Income Tax Act, 1961. Vidarbha Engineering Industries entered into a collaboration agreement with Unitech on 17.03.1994 for development and construction of a commercial project at Dahipura and Untkhana in Nagpur. Unitech was to retain 78% of the total constructed area, transferring the rest 22% to Vidarbha. It is imperative to note that Vidarbha itself had leased said land from Nagpur Improvement Trust for a period of thirty years, and could not transfer title to any third party such as Unitech. The Court interpreted Section 269-UA of the Income Tax Act, 1961 which included transfer of any right or enabling enjoyment of immovable property, as follows:6. It is clear from the agreement that the transfer of rights of Vidarbha Engineering in its land does not amount to any sale, exchange or lease of such land, since, only possessory rights have been granted to Unitech to construct the building on the land. Nor is there any clause in the agreement expressly transferring 22% of the building to Vidarbha after it is constructed by Unitech. Clause 4.6 only mentions that as a consideration for Unitech agreeing to develop the property it shall retain 78% and the share of Vidarbha Engineering will be 22%. In fact Parliament has defined transfer, deliberately wide enough to include within its scope such agreements or arrangements which have the effect of transferring all the important rights in land for future considerations such as part acquisition of shares in buildings to be constructed, vide sub-clause (ii) of clause (f) of sub-section (2) of Section 269-UA. There is no doubt that the collaboration agreement can be construed as an agreement and in any case an arrangement which has the effect of transferring and in any case enabling the enjoyment, of such property. Undoubtedly, the collaboration agreement enables Unitech to enjoy the property of Vidarbha Engineering for the purpose of construction. There is also no doubt that an agreement is an arrangement. It must, therefore, be held that the collaboration agreement effectuates a transfer of the subject land from Vidarbha Engineering to Unitech within the meaning of the term in Section 269-UA of the Act. It appears to be the intention of parliament to cover all such transactions by which valuable rights in property are in fact transferred by one party to another for consideration, under the word transfer, for fulfilling the purpose of pre-emptive purchase i.e. prevention of tax evasion. A judgment of the Patna High Court in Ashis Mukerji v. Union of India [Ashis Mukerji v. Union of India, (1996) 222 ITR 168 (Pat)] cited before us takes the view that a development agreement is covered by the definition of transfer in Section 269-UA. We note the same with approval.Thus, for the purposes of the Income Tax Act, the collaboration agreement was considered as a transfer, even though no title vested with Vidarbha in order to pass the same to Unitech.37. The features set out earlier in this judgment demonstrate that the landowner in all the cases were aware that the notification was issued under Section 4 on 27.08.2004. No doubt, such landowners did not acquire the land after such notification. However, during the subsistence of the notification, which constituted the manifest intention of the State to acquire the lands, the third parties rights were consciously created for substantial consideration. In the case of Paradise, the initial sum paid was Rs. 75 lakhs, and in the subsequent agreement with Green Heights, the sum paid was Rs. 28 crores for parting with development rights relating to 2.681 acres. Similarly, in the case of Balbir Singh and Ram Pyari, the initial agreement with Frontier entitled the landowners to 1000 sq. yds out of each developed acre plus Rs. 52 lakhs, and in the subsequent agreement with Godrej, the landowners were entitled to 55,328.60 sq. ft. of built up units, and Frontier was entitled to 30% share of the receipts in the project. In the case of Karma, the developer Unitech paid Rs. 15 crores and was entitled to a share of receipts of developed units sold.38. The main judgment of this Court has carefully considered and gone into great lengths to examine the file notings which led to the final decision of the State not to acquire such lands. In the case of Frontier, the records clearly demonstrate that a noting was approved by the State Government at the highest level that All India Service Officers of the Jammu & Kashmir cadre had requested for lands for their residential housing society. This request was the main basis for the decision not to acquire Frontiers lands which was the subject matter of License No. 88 of 2008. After said decision, Frontier parted with all its rights to Godrej, as did the owners of other parcels of land, i.e., Balbir Singh and Ram Pyari. These facts clearly demonstrate how the entire state machinery was subverted. The collaboration agreement with Godrej shows that 50 residential units were committed to the Jammu & Kashmir cadre of All India Service Officers (just above 10% of the total number of flats ultimately constructed). Likewise, in the case of Paradise, Frontier and Karma too, entering into collaboration agreements and the seeking grant of licenses formed the basis for the States final decision not to go ahead with the acquisition even though a declaration under Section 6 had been published.39. It is clear that the collaboration agreements formed the first element of a two-step process whereby the colonizers / developers (who might have been also land owners) having acquired lands, prior to the preliminary notification, went ahead and entered into commitments by executing collaboration agreements after the notification under Section 4, and even declaration under Section 6, with full knowledge. The consideration for parting with developmental rights was far higher than the market value of the lands which they would have been entitled to. These acts ultimately culminated with the decision not to acquire the lands. The second step – and the important one persuading the State not to acquire the lands (In the case of Frontier Developers (earlier known as Conway), the request for de-notification was made, by a letter dated 17.08.2007, to the state of Haryana - a fact noted in the status report filed by the Enforcement Directorate (hereinafter, ED) before the Court)- was the application for, and the grant of, development licenses. Uniformly, in all these cases, the applications were made prior to the scheduled date of publication of the award (26.08.2007). This is a significant and tell-tale factor because there was no way the applicants would have ordinarily known that an award would not be pronounced on the concerned date. In fact, the application clearly indicates foreknowledge that their lands would not be ultimately acquired. This is what may be characterized as the proverbial smoking gun which establishes the complicity of these individuals and entities.40. Land ownership typically carries with it a bundle of rights. A landowner has the right to possess, sell, lease, develop, sub-let, occupy, etc. On an overall analysis of the common features of all the collaboration agreements as carried out in an earlier part of the judgment, it is evident that except for the empty husk of a title, the land owner parted with predominant and substantial rights over the property, including possession. In almost all the cases, these rights were parted for consideration which was far above the notified acquisition rates. This observation applies in the case of the two companies – Frontier and Karma, who continued to be the land owners of the land. Such emptying out of all important attributes that constitute rights and interest over the property cannot but be viewed as a transfer. To hold otherwise would mean that after receiving substantial amounts – equal to many times over the existing market rates (that could ordinarily have been claimed by the landowner in respect of their holding in acquisition proceedings) – and entitling the developer to create third-party rights in respect of not a few but hundreds of people, nevertheless, the landowner could still hold out and claim their right to not part with the title. Such a conclusion would defy reason and commonsense and cannot be countenanced. In the circumstances, it is held that the collaboration agreements in all these cases which ultimately culminated in the grant of licenses would fall within the mischief of the term transfer as envisioned in the main judgment, as it foreclosed the enjoyment and possession by the landowner, who willingly parted with such rights, for valuable consideration and acquiesced to irreversible changes on it.41. The above observations are dispositive of the issue. However, this Court cannot be oblivious to the existing state of affairs. The collaboration agreement entered into between Paradise and Green Heights and Frontier and Balbir Singh and Ram Pyari with Godrej have led to construction of units. This Court has been shown materials which establish that in the case of Green Heights, the number of constructed units is 438 (of which 371 have been sold) and in the case of Godrej, the constructed units is 567. It is also on record that Green Heights has received Rs. 70.92 crores as against sale value of agreements. Likewise, there is no denial of the fact that Godrej has also received substantial amounts in the range of Rs. 300 crores towards its residential units sold. In these circumstances, the Court would have to strike a proper balance and protect the interests of such third-party consumers to ensure that they do not suffer on account of the past sins of the colonizers / developers or land owners, as the case may be.. The main judgment recorded that in another transaction, one of the colonizers / developers had paid Rs. 4.5 crores per acre at the relevant time (in 2009). During the hearing, learned counsel for the State mentioned that the current value of these contiguous land is to the tune of Rs. 5.3 crores.43. As far as Karmas lands are concerned, the materials on record disclose that no development has taken place, and there is no allotment in respect of their lands. Karma had in fact entered into a collaboration agreement with M/s Unitech Ltd., and based on that, it applied for license on 15.01.2007. The license was ultimately granted before the date of the decision of the State not to acquire its land. In these circumstances, this Court holds that the collaboration agreement – especially the supplementary agreement which was entered into after even the declaration under Section 6 was published – the application for license and the grant of license constituted an irreversible clog in the ownership of the lands. Karma received substantial amounts to the tune of Rs. 15 crores, and in terms of the agreement placed on record, was entitled to far more substantial amounts had the development in fact been completed.46. M/s. R.P. Estates Pvt. Ltd. (hereinafter, R.P. Estates) owned 2.9875 acres of land, and M/s. Subros Ltd. (hereinafter, Subros) owned 10.881 acres. The lands of both these concerns were included in the notification under Section 4 as well as the declaration under Section 6. The State decided to release these lands, as indicated by its letter to Subros dated 22.08.2007. This stand was reiterated by the State in these proceedings, where it was submitted that as there were no sale transactions with respect to these lands, it was decided not to include them in the deemed award. It was also stated that no developmental rights were parted by them.47. Learned counsel appearing for both the entities reiterated the States submissions, that the lands were vested in these two concerns and continued to be so vested. In the circumstances, R.P. Estates and Subros had to be treated as bona fide land owners, since they did not enter into any transactions during the suspect period.48. In three applications (i.e., I.A. Nos. 111557 of 2020, 111562 of 2020 and 111563 of 2020) in M.A. No. 2067 of 2020, R.P. Estates further submitted that it applied for license from the DTCP much after the date of the deemed award and was granted License No. 82 of 2009 on 08.12.2009. It also disclosed that developmental rights were thereafter transferred to another enterprise called M/s. Elan Ltd. in 2013-14. The application and pleadings show that the project was completed on 14.01.2020 and the application for grant of occupation certificate was thereafter made, with 305 units allotted to third parties out of a total of 362.49. Subros had initially challenged the acquisition by filing a writ petition before the Punjab & Haryana High Court (M/s Subros Ltd. v State of Haryana, W.P. (C) No. 2787/2006 (dismissed on 20.09.2007)). However, after it received a letter from the DTCP, communicating recommendation for withdrawal from acquisition, Subros withdrew its petition. Thereafter, it applied for license, and was granted the same on 13.06.2008. Subros did not enter into any collaboration agreement or sell its rights during the suspect period - it sold the lands to one Akme Projects Ltd. much later on 23.01.2012.51. Express Greens was a project of DLF Home Developers Ltd. (hereinafter, DLF). The main judgment of this Court had dealt with the manner in which the land for this project was acquired from the original landowners in the village Manesar by a group of companies and entities owned or wholly controlled by ABW Infrastructure Ltd. (hereinafter, ABW). These lands, in aggregate, measured 33.536 acres. ABW and its group of companies obtained License No. 283 and 284 for their development. These lands were part of the 235 acres which ABW had purchased during the subsistence of the acquisition proceedings. Eventually, before the final decision to drop the acquisition was taken by the State on 29.01.2010, the lands and licenses were transferred to DLF for a consideration of Rs.150.95 crores.58. It is evident on a reading of various parts of the main judgments that ABW was in the eye of the storm. This Courts main judgment is explicit about the fact that DLF chose to dip its hands in murky waters by acquiring rights to the 33.536 acres as well all rights under the licenses for Rs. 150 crores from ABW (The status report of ED reveals that on 13.04.2008, a request for transfer of license in favour of DLF was made to the DTCP. DLF also continued to engage in correspondence in this regard (on 26.09.2008, 14.01.2010, 29.09.2010, etc.)). In these circumstances, there can be no question of seriously deliberating upon the application for release of these 33.536 acres of land from the deemed award. There is absolutely no merit in the submissions on behalf of DLF that the title to lands continued with the original owners. The entire exercise of ABW was to acquire these lands and then transfer them to those capable of developing the lands, such as DLF. Those contentions are accordingly rejected. However, the rejection of DLFs claim does not in any way impinge on the rights, title and interest of the allottees, who were handed over possession of their flats, upon payment of full consideration, or those allottees entitled to it, after payment of the balance sums. The HSIIDC shall complete the process of validating their title, including the title to the undivided and proportionate land share, within six months from the date of this judgment.59. So far as the complaints of the home buyers are concerned, this Court had directed for the latest status report to be placed before it, which was furnished by way of an additional affidavit dated 28.04.2020, by DLF. This affidavit enclosed the details of the project. A total of 1348 units were constructed, of which 1223 were sold, and 510 sale deeds were registered. Possession was granted to 882 allottees. It is evident therefore that 441 allottees are yet to be handed over possession; furthermore 713 sale deeds are yet to be executed and registered. The HSIIDC is therefore directed to ensure that the balance allottees are notified about the execution of sale deed and the process of execution and registration of sale deed is completed in their case within six months from the date of this judgment. HSIIDC shall ensure that a designated nodal officer is deployed to scrutinize the relevant documents and facilitate the execution of such sale deeds.60. The affidavit also discloses that a total of 116 townhouses/independent floors were constructed. 77 townhouses/independent floors were sold and the structure of 25 of them was complete. The affidavit further stated that 39 houses/independent floors are unsold and construction of 11 townhouses are complete. Thus, all rights, title and interest in respect of unsold 39 townhouses in the independent floors vest with the HSIIDC, which shall deal with them in accordance with its policies and applicable laws. Likewise, in case of unsold apartments, all rights, title and interest shall vest with HSIIDC.61. According to the affidavit, 96 apartments on the 15th tower have been completed but no occupation certificate has yet been issued. In case the application is pending, the DTCP shall ensure due inspection and decision on the occupation certificate. If any deficiency has to be rectified the same shall be completed by the HSIIDC.65. An application (MA No. 50/2019) was filed by Kalinga Realtors Pvt. Ltd. the first applicant, a wholly-owned subsidiary of the second applicant, Anant Raj Ltd. Both applicants are cumulatively referred to as Kalinga. The claim in this application is for a direction for proper calculation of amounts payable by HSIIDC to Kalinga, in terms of the main judgment. It is a matter of record, that Kalinga sought NOC from DTCP to purchase the land in October 2009. The same was granted in January, 2010 and sale deed executed shortly thereafter on 23.04.2010. ABW and its group of companies had acquired License No. 67 of 2009 dated 19.11.2009, which was transferred to Kalinga pursuant to the sale deed on 12.07.2010. Thus, Kalingas attempt to purchase the land and rights granted by the license clearly fell within the mischief of the main judgment of this Court.70. From the above discussion, it is evident that Kalingas grievance is regarding the amounts it claims it is entitled to. The gap between its claim (Rs.308 crore) and what HSIIDC offered at one time (Rs. 11.68 crores) is too excessive. The materials placed on record show that HSIIDC in fact, did put up the entire land, with the construction for auction (In its portal HTTPS://HSIIDC.BIDX.IN) on an as is where is basis. The date of e-auction was 21.09.2021, with a reserve price of Rs. 309 crores. The advertisement also states that 12 towers were constructed with finishing remaining; other works (EWS, community centre, etc.) were yet to be constructed. The advertisement further states that the successful bidder was to step into Kalingas shoes and complete the project.71. It is apparent to this Court from the materials on record that the initial valuation of Rs. 11.68 crores made by HSIIDC is inaccurate, particularly in view of the reserve price indicated by it in the auction notice. However, in view of the final order proposed, no final opinion or finding is recorded.76. ABW was earlier known as M/s. Aditya Buildwell Pvt. Ltd. ABW and its associated companies had purchased maximum land measuring over 235 acres. ABW Aditya Niketen was floated by ABW in M-I, M-I(A) and M-I(C) adjoining HSIIDC Residential Sector-1, Manesar, Gurgaon, Haryana. That project was the subject matter of the proceedings throughout culminating in the main judgment of this Court.77. From 2009 onwards, 1993 allottees booked their flats, built floors, plots shops, commercial space as the case was, with ABW. In ABW Aditya Niketan and City Centre, a residential plotted colony, on 104.912 acres of land with 236 plots, 1488 of floors/flats and 269 shops and commercial places, was to be developed and constructed, pursuant to License No. 66 of 2009 dated 09.11.2009 issued by DTCP.78. The ABW Manesar Allottee Welfare Society, 118-C, Sector 30, Gurgaon, Haryana (hereinafter, Society) was registered on 21.09.2012. The Society has filed on behalf of its member allottees, several applications, seeking directions. It has filed charts, and proof of payment, by way of copy of receipts issued by ABW, to substantiate its claim of genuine allottees being its members. The Society has sought impleadment before the High Court, in the original proceedings, out of which the main judgment culminated, in this Court. The society was also impleaded during proceedings in this Court.79. The Society claims that in adherence to the directions contained in para 42.8 of this Courts main judgement, the allottees preferred their claims and submitted all required information to HSIIDC primarily indicating description of the plot/unit, exact measurement of the area, purchase price and the total payment made to ABW including (a) basic sale price, (b) External and Internal Development Charges, (c) service tax, etc. Along with the claim form, the necessary documents were also enclosed, namely, provisional allotment letter, payment receipts, ID proof and address proof. An attested affidavit duly supporting the contents of the claim was also submitted.80. The Society claims that as there was no indication of compliance with the direction contained in para 42.8 of the main judgment, on 07.01.2019 it filed an application under the Right to Information Act, 2007. The HSIIDC responded by its reply dated 24.01.2019 stating that claims of 220 plot buyers, 1270 flat/floor buyers and 157 commercial shop buyers had already been received by it. The Society claims it has regularly and continuously impressed upon HSIIDC as to the delay in adherence and compliance of the judgement, but with no effect. The Societys grievance is that despite diligence by its members, HSIIDC failed to verify their claims within a period of two months and after deep slumber of nine months, it moved an application (M.A. No.50 of 2019) for three months extension of time and this Courts order dated 18.01.2019 granted extension up to 22.04.2019.86. As found in the main judgment as well as the previous part of this judgment, ABW was one of the prime movers behind the entire subversion and abuse of the state machinery for acquisition of farmers lands. ABW obtained licenses for 104.682 acres and floated schemes for plots with two-three storied structures and residential as well as commercial units. Despite the fact that licenses were granted way back, even as on the date of the judgment of this Court (and even now), no development has taken place. All that was asserted on behalf of the Society was that IDC and EDC amounts were paid. HSIIDCs stand is that these charges are in fact in arrears. Having regard to the totality of circumstances, this court is of the opinion that the claim by the Society that the lands be made over to it or the residents on an as is where is basis for development by them is untenable.87. The main judgment expressly stated that it is only in cases where construction is completed or nearing completion that the interests of third party allottees were protected. However, such is not the situation in the case of 104.682 acres of land that belonged to ABW. There is no denial that such lands have now been vested in HSIIDC as a consequence of the main judgment of this Court and are to be included as part of the deemed award. It is apparent that the when the Court delivered the main judgment, it was unaware of the true nature of acts in relation to each project, especially in relation to ABW, i.e., that no development had taken place and that allottees had merely paid certain instalments to the colonizer / developer. Furthermore, the materials on record disclose that a large number of claims have been made for refund.89. Eleven applications were preferred in relation to lands that were inter alia, subject of license No. 175 of 2008 dated 30.09.2008 pertaining to 2.443 acres of land in village Naurangpur acquired by Girnar Infrastructure Pvt. Ltd. (hereafter Girnar) and License No. 76 in favour of one Navin Rao to the extent of 11.519 acres). Girnar was a wholly owned subsidiary of Unitech, and Navin Rao too was an affiliate of Unitech. Applications were preferred by Unitech, and one Speed Town Planners Pvt. Ltd. (hereafter Speed Town) which claimed to be entitled to rights to 19.56 acres.90. In 2008, Girnar obtained license No. 175 of 2008 dated 30.09.2008 for developing a commercial colony on 2.443 acres out of the 19.56 acres of land. The license was granted by DTCP. Out of the 2.443 acres, an area of 1.5125 acres was notified under Section 4 of Acquisition Act, on 07.08.2013 and under Section 6 on 31.07.2013. Finally, 1.5125 acres of land was acquired under Award No. 13 dated 29.07.2016, for development and utilization of sectors roads (Sector 75 to 80) at Gurugram. Unitech urges that the acquisition of 1.5125 acres rendered the balance area of 0.93 acres to be commercially non-viable for any construction/development thereon as it was not be possible to consume the entire permissible FAR of 2.443 acres on the residual parcel of land. It is contended that an agreement to sell was executed on 14.03.2016 between Girnar as vendor and Speed Town as vendee for the sale of a portion of land admeasuring 9.69 acres, out of balance 17.116 (19.56 - 2.443 = 17.116 acres) at the rate of Rs. 4.40 crores per acre, for a total sale consideration of Rs. 42.636 crores. Of that consideration, a sum of Rs. 33.21 crores was received by Girnar from Speed Town for sale of 9.69 acres from 13.01.2016 to 18.06.2016 while an amount of Rs. 9.426 crores (Rs. 42.636 - Rs. 33.21 = Rs. 9.426) is outstanding in the books of accounts.91. In terms of the agreement, Speed Town was obliged to clear the balance outstanding amount of Rs. 9.426 crores upon submission of the sale deed for registration.92. Applications are preferred by Unitech and Speed Town. Speed Town claims to have entered into collaboration agreement with Girnar, on 12.02.2016. Subsequently, the agreement to sell was entered into by the parties, and the sum of Rs.33.21 crores was paid to Girnar. Speed Town seeks directions that the lands in respect of which it entered into collaboration agreement (9.69 acres) ought to be released from the deemed award directions of this Court in its main judgment. In the alternative, it claims for a direction that Girnar should refund amounts paid by it.100. This Courts main judgment, has noted in more than one place, from paras 26.1 to 26.9, and traced the sequence of events which led to the notification of 912 acres for acquisition, the resultant panic and scramble on the part of landowners to get rid of their holdings, the purchase of these lands, and in many places, their entering into agreements of sale or development agreements, by builders, which made no mention of the impending acquisition, leading to a demand to drop acquisition, which was ultimately done at two points of time, i.e. 24.08.2007 and 29.01.2010. The transactions relating to lands owned by Girnar, and Unitechs associates, squarely fall within the suspect period. In these given circumstances, Unitechs plea, or that of Speed Town, that the collaboration agreement with the latter- and the agreement to sell, - were executed after the suspect period, are untenable. The taint that attaches with the initial transaction (i.e., Girnar acquiring the lands during the acquisition process) attaches equally, to Speed Towns transaction, because the entire premise, which persuaded the vendor to sell the lands, was that the acquisition proceedings would go through, divesting their title. However, the vendee and its holding company appeared to have full knowledge of the nature of future events, in which they probably had a hand.102. 3.35 acres of agricultural land in Naurangpur was purchased by two individuals, i.e., Shri Ashok Kumar Lakhotia and Shri Subhash Chand Goyal by sale deeds dated 26.02.2004 and 08.03.2004. It was claimed that these two also obtained possession. The lands became the subject matter of acquisition in the notification under Section 4. The original owners sought for release of land and thereafter objected under Section 5A of the Acquisition Act. Some lands were released from acquisition, however, the major portion was included in the declaration under Section 6. Request for release of these lands for acquisition was made. This was followed up by an order dated 31.07.2007 releasing the land from acquisition. M/s. Innovative Infradevelopers Pvt. Ltd. (hereinafter, Innovative) thereafter entered the scene on 15.10.2007. Subsequently, they sought for and were granted license to develop the lands on 20.06.2008 (License No. 128 of 2008). Apparently, meanwhile on 19.12.2007, Innovative purchased the two parcels of lands. Innovative claims that pursuant to the license granted by DTCP, it developed the land and constructed commercial tower.103. After the main judgment was delivered, the state while ensuring the publication of the deemed award also included the lands which were the subject matter of License No. 128 of 2008. Aggrieved, Innovative approached the Punjab and Haryana High Court in writ proceedings (M/s Innovative Infradevelopers Pvt. Ltd. v State of Haryana, W.P. (C) No. 18336 of 2020 (dismissed on 03.11.2020)). The writ petition however was rejected by the High Court by an order which has been impugned in the present case by special leave (M/s Innovative Infradevelopers Pvt. Ltd. v State of Haryana, SLP (C) No. 2147 of 2021).104. The construction put up by Innovative is a commercial building known as Legend Heights. Several individuals and entities claimed to have purchased spaces within it. They have approached this Court by filing an application - i.e., the Legend Height Owners Welfare Association (hereinafter, Legend Heights Association). It claims to represent 35 individuals who allegedly paid substantial amount ranging between Rs. 13 lakhs and Rs. 65 lakhs. The details of the application filed by Legend Heights Association list the amounts paid to Innovative and also describes the units allotted in the building to the individuals.105. Another set of applications has been preferred by Paramveer Distributors Pvt. Ltd., (hereinafter, Paramveer) a non-banking financial institution. It alleges having entered into an agreement with Innovative on 08.06.2017, whereby an area measuring 96,216.03 sq. ft. was agreed to be purchased by it for a total consideration of Rs. 16 crores. The areas sold was for a hotel block. The relevant condition stipulated that out of Rs. 16 crores payable by the buyer, Rs. 8.05 crores, by way of outstanding dues of one Ms. Saraswati Devi was agreed to be adjusted. Another sum of Rs. 4.24 crores by way of outstanding dues of Paramveer, was agreed to be adjusted. The balance amount was to be paid in the ratio of 55:45 respectively.108. From the factual narrative it is evident that the original owners of lands themselves purchased the lands in early February 2004. This Court cannot per se attribute the foreknowledge about the acquisition. However, their subsequent conduct in seeking for denotification which led to the ultimate withdrawal from acquisition of those lands (even though they were included in the notification under Section 6) is an established fact. Innovative concededly entered into transactions for purchase of lands in 2007 and applied and obtained the requisite license in 2008.109. At the same time, this Court is cognizant of the fact that a number of allottees appear to have invested substantial amounts (in respect of the commercial building of Legend Heights, and not the hotel building of Paramveer). Although HSIIDC is silent as to whether the occupation certificates have been granted, there is some material on record (by way of averments in the special leave petition as well as in the application by the Legend Heights Association) that several sale deeds/conveyance were executed and registered.114. 105 individuals approached the Punjab & Haryana High Court, through a common writ petition, claiming directions that they were residents of village Manesar (Dharamvir v State of Haryana, SLP (C) No. 5490 of 2021). The claim put forth by them was that they were bona fide and innocent purchasers who had acquired the lands which were included in the notification under Section 4. They acquired rights in respect of lands – presently under their occupation during the suspect period, i.e., between 27.08.2004 and 29.01.2010. It is alleged that assuming the transactions to be free from any cloud on the title, these petitioners had even proceeded to construct upon lands. The claim made to the Punjab & Haryana High Court was that their lands should be excluded from the deemed award. The High Court declined the claim, reasoning that the purchases were made by them during the suspect period and this courts judgment provided relief only to the original land owners who had not transferred, alienated or in any manner sold or parted with rights in respect of the land.116. The entire tenor and reasoning of the main judgment is that proceedings under the Land Acquisition Act were used as device, whereby through a web of holding or shell companies, developers ultimately entered into transactions and paid valuable amounts towards developmental rights – during pendency of acquisition proceedings. Those rights in turn were exploited to persuade the state machinery to withdraw from the acquisition. The prices of land had risen astronomically by then. Taking all these facts into consideration, as well as the fact that developers had proceeded to develop properties and construct buildings in which units were sold or allotted, this Court allowed only one kind of exception, i.e., that bona fide purchasers of such units, flats or shops etc. to be vested with title. In respect of all unallotted, unconstructed land as well as buildings and land forming part of each of such project, title was to vest in HSIIDC.117. Wherever development agreements were entered into and licenses issued, and no activity took place in the form of construction or development, land was to vest in HSIIDC. If the above thread of reasoning were to be considered, it is apparent that third-party bona fide purchasers who secured allotment by paying valuable considerations which is verifiable as a matter of fact (by independent material) was protected. In the case of all other transactions, however, such protection was not extended for the simple reason that there is no manner for verifying whether in fact a bona fide transaction of the kind alleged took place. For these reasons, this Court is of the opinion that there is no infirmity with the judgment and order of the Punjab and Haryana High Court.Out of the 912 acres originally notified under Section 4 of the deemed consideration of objections under Section 5A, 688 acres were apparently notified under Section 6. The entire acquisition was abandoned on 29.01.2010. This Court, in its main judgment has, in many places - held, in the that the states decision to not to go ahead with the acquisition was mala fide and amounting to a fraud under the Acquisition Act. The HSIIDC through its applications sought clarifications about whether the term transfer, includes only conveyance or formal transfer of lands or would it include parting with valuable developmental rights. In an earlier portion of this judgment, this aspect has been elaborately dealt with, and concluded that the expression transfer has to be interpreted widely and not in a narrow or technical manner. Thus, in all cases where collaboration agreements were entered into or developmental rights were parted for valuable consideration or where licenses were applied for during the suspect period whether in favor of the original land owner who might have entered into collaboration agreement and received monies, the transactions would fall within the mischief of transfer. Having regard to these conclusions, the applicants apprehensions are unfounded. | 0 | 12,181 | 8,776 | ### Instruction:
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Rs. 15 crores and was entitled to a share of receipts of developed units sold. 38. The main judgment of this Court has carefully considered and gone into great lengths to examine the file notings which led to the final decision of the State not to acquire such lands. In the case of Frontier, the records clearly demonstrate that a noting was approved by the State Government at the highest level that All India Service Officers of the Jammu & Kashmir cadre had requested for lands for their residential housing society. This request was the main basis for the decision not to acquire Frontiers lands which was the subject matter of License No. 88 of 2008. After said decision, Frontier parted with all its rights to Godrej, as did the owners of other parcels of land, i.e., Balbir Singh and Ram Pyari. These facts clearly demonstrate how the entire state machinery was subverted. The collaboration agreement with Godrej shows that 50 residential units were committed to the Jammu & Kashmir cadre of All India Service Officers (just above 10% of the total number of flats ultimately constructed). Likewise, in the case of Paradise, Frontier and Karma too, entering into collaboration agreements and the seeking grant of licenses formed the basis for the States final decision not to go ahead with the acquisition even though a declaration under Section 6 had been published. 39. It is clear that the collaboration agreements formed the first element of a two-step process whereby the colonizers / developers (who might have been also land owners) having acquired lands, prior to the preliminary notification, went ahead and entered into commitments by executing collaboration agreements after the notification under Section 4, and even declaration under Section 6, with full knowledge. The consideration for parting with developmental rights was far higher than the market value of the lands which they would have been entitled to. These acts ultimately culminated with the decision not to acquire the lands. The second step – and the important one persuading the State not to acquire the lands (In the case of Frontier Developers (earlier known as Conway), the request for de-notification was made, by a letter dated 17.08.2007, to the state of Haryana - a fact noted in the status report filed by the Enforcement Directorate (hereinafter, ED) before the Court)- was the application for, and the grant of, development licenses. Uniformly, in all these cases, the applications were made prior to the scheduled date of publication of the award (26.08.2007). This is a significant and tell-tale factor because there was no way the applicants would have ordinarily known that an award would not be pronounced on the concerned date. In fact, the application clearly indicates foreknowledge that their lands would not be ultimately acquired. This is what may be characterized as the proverbial smoking gun which establishes the complicity of these individuals and entities. 40. Land ownership typically carries with it a bundle of rights. A landowner has the right to possess, sell, lease, develop, sub-let, occupy, etc. On an overall analysis of the common features of all the collaboration agreements as carried out in an earlier part of the judgment, it is evident that except for the empty husk of a title, the land owner parted with predominant and substantial rights over the property, including possession. In almost all the cases, these rights were parted for consideration which was far above the notified acquisition rates. This observation applies in the case of the two companies – Frontier and Karma, who continued to be the land owners of the land. Such emptying out of all important attributes that constitute rights and interest over the property cannot but be viewed as a transfer. To hold otherwise would mean that after receiving substantial amounts – equal to many times over the existing market rates (that could ordinarily have been claimed by the landowner in respect of their holding in acquisition proceedings) – and entitling the developer to create third-party rights in respect of not a few but hundreds of people, nevertheless, the landowner could still hold out and claim their right to not part with the title. Such a conclusion would defy reason and commonsense and cannot be countenanced. In the circumstances, it is held that the collaboration agreements in all these cases which ultimately culminated in the grant of licenses would fall within the mischief of the term transfer as envisioned in the main judgment, as it foreclosed the enjoyment and possession by the landowner, who willingly parted with such rights, for valuable consideration and acquiesced to irreversible changes on it. 41. The above observations are dispositive of the issue. However, this Court cannot be oblivious to the existing state of affairs. The collaboration agreement entered into between Paradise and Green Heights and Frontier and Balbir Singh and Ram Pyari with Godrej have led to construction of units. This Court has been shown materials which establish that in the case of Green Heights, the number of constructed units is 438 (of which 371 have been sold) and in the case of Godrej, the constructed units is 567. It is also on record that Green Heights has received Rs. 70.92 crores as against sale value of agreements. Likewise, there is no denial of the fact that Godrej has also received substantial amounts in the range of Rs. 300 crores towards its residential units sold. In these circumstances, the Court would have to strike a proper balance and protect the interests of such third-party consumers to ensure that they do not suffer on account of the past sins of the colonizers / developers or land owners, as the case may be. 42. The main judgment recorded that in another transaction, one of the colonizers / developers had paid Rs. 4.5 crores per acre at the relevant time (in 2009). During the hearing, learned counsel for the State mentioned that the current value of these contiguous land is to the tune of Rs. 5.3 crores.
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Heights Association). It claims to represent 35 individuals who allegedly paid substantial amount ranging between Rs. 13 lakhs and Rs. 65 lakhs. The details of the application filed by Legend Heights Association list the amounts paid to Innovative and also describes the units allotted in the building to the individuals.105. Another set of applications has been preferred by Paramveer Distributors Pvt. Ltd., (hereinafter, Paramveer) a non-banking financial institution. It alleges having entered into an agreement with Innovative on 08.06.2017, whereby an area measuring 96,216.03 sq. ft. was agreed to be purchased by it for a total consideration of Rs. 16 crores. The areas sold was for a hotel block. The relevant condition stipulated that out of Rs. 16 crores payable by the buyer, Rs. 8.05 crores, by way of outstanding dues of one Ms. Saraswati Devi was agreed to be adjusted. Another sum of Rs. 4.24 crores by way of outstanding dues of Paramveer, was agreed to be adjusted. The balance amount was to be paid in the ratio of 55:45 respectively.108. From the factual narrative it is evident that the original owners of lands themselves purchased the lands in early February 2004. This Court cannot per se attribute the foreknowledge about the acquisition. However, their subsequent conduct in seeking for denotification which led to the ultimate withdrawal from acquisition of those lands (even though they were included in the notification under Section 6) is an established fact. Innovative concededly entered into transactions for purchase of lands in 2007 and applied and obtained the requisite license in 2008.109. At the same time, this Court is cognizant of the fact that a number of allottees appear to have invested substantial amounts (in respect of the commercial building of Legend Heights, and not the hotel building of Paramveer). Although HSIIDC is silent as to whether the occupation certificates have been granted, there is some material on record (by way of averments in the special leave petition as well as in the application by the Legend Heights Association) that several sale deeds/conveyance were executed and registered.114. 105 individuals approached the Punjab & Haryana High Court, through a common writ petition, claiming directions that they were residents of village Manesar (Dharamvir v State of Haryana, SLP (C) No. 5490 of 2021). The claim put forth by them was that they were bona fide and innocent purchasers who had acquired the lands which were included in the notification under Section 4. They acquired rights in respect of lands – presently under their occupation during the suspect period, i.e., between 27.08.2004 and 29.01.2010. It is alleged that assuming the transactions to be free from any cloud on the title, these petitioners had even proceeded to construct upon lands. The claim made to the Punjab & Haryana High Court was that their lands should be excluded from the deemed award. The High Court declined the claim, reasoning that the purchases were made by them during the suspect period and this courts judgment provided relief only to the original land owners who had not transferred, alienated or in any manner sold or parted with rights in respect of the land.116. The entire tenor and reasoning of the main judgment is that proceedings under the Land Acquisition Act were used as device, whereby through a web of holding or shell companies, developers ultimately entered into transactions and paid valuable amounts towards developmental rights – during pendency of acquisition proceedings. Those rights in turn were exploited to persuade the state machinery to withdraw from the acquisition. The prices of land had risen astronomically by then. Taking all these facts into consideration, as well as the fact that developers had proceeded to develop properties and construct buildings in which units were sold or allotted, this Court allowed only one kind of exception, i.e., that bona fide purchasers of such units, flats or shops etc. to be vested with title. In respect of all unallotted, unconstructed land as well as buildings and land forming part of each of such project, title was to vest in HSIIDC.117. Wherever development agreements were entered into and licenses issued, and no activity took place in the form of construction or development, land was to vest in HSIIDC. If the above thread of reasoning were to be considered, it is apparent that third-party bona fide purchasers who secured allotment by paying valuable considerations which is verifiable as a matter of fact (by independent material) was protected. In the case of all other transactions, however, such protection was not extended for the simple reason that there is no manner for verifying whether in fact a bona fide transaction of the kind alleged took place. For these reasons, this Court is of the opinion that there is no infirmity with the judgment and order of the Punjab and Haryana High Court.Out of the 912 acres originally notified under Section 4 of the deemed consideration of objections under Section 5A, 688 acres were apparently notified under Section 6. The entire acquisition was abandoned on 29.01.2010. This Court, in its main judgment has, in many places - held, in the that the states decision to not to go ahead with the acquisition was mala fide and amounting to a fraud under the Acquisition Act. The HSIIDC through its applications sought clarifications about whether the term transfer, includes only conveyance or formal transfer of lands or would it include parting with valuable developmental rights. In an earlier portion of this judgment, this aspect has been elaborately dealt with, and concluded that the expression transfer has to be interpreted widely and not in a narrow or technical manner. Thus, in all cases where collaboration agreements were entered into or developmental rights were parted for valuable consideration or where licenses were applied for during the suspect period whether in favor of the original land owner who might have entered into collaboration agreement and received monies, the transactions would fall within the mischief of transfer. Having regard to these conclusions, the applicants apprehensions are unfounded.
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The Vice-Chancellor, Utkaluniversity And Others Vs. S. K. Ghosh And Others | Compagnie De Mayville v. Whitley, 1896-1 Ch 788 (C), and - Parker and Cooper ltd. v. Reading, 1926-1 Ch 975 (D); also, in the present case one of the items in the agenda of both notices was "other matters, if any".But it is not necessary to go into that because in this case these members did in fact attend one or other of the meetings and expressed their views, not individually, but as members of a meeting which was considering the matter, and there was unanimity on both occasions. Even on the stricter view taken in the cases relied on by counsel it is pointed out that want of due notice can be waived in given circumstances. Thus, if a person who was not noticed appears at the meeting and waives the irregularity, the defect is cured; so also when a person is too far away to be reached in time to enable him to communicate with the Committee before the meeting; the sending of a notice is then excused. See - AIR 1934 PC 62 (A) and - Young v. Ladies Imperial Club Ltd., (1920) 89 LJKB 536 (E).The substance is more important than the form and if there is substantial compliance with the spirit and substance of the law we are not prepared to let an unessential defect in form defeat what is otherwise a proper and valid resolution. We, however, confine our remarks to the facts of this case where there was actual apperance without objection at meetings properly convened and where there was complete unanimity on both occasions. Where it would be proper to reach the same conclusion when there is a dissentient voice we are not prepared to say. In our opinion, the High Court was wrong in holding that the two resolutions were invalid. Whatever may be thought about each taken separately, the defects, If any, are in our judgment, cured when the two are read together and regarded as a whole.18. We also think the High Court was wrong on the second point. The learned Judges rightly hold that in a mandamus petition the High Court cannot constitute itself into a Court of appeal from the authority against which the appeal is sought, but having said that they went on to do just what they said they could not. The learned Judges appeared to consider that it is not enough to have facts established from which a leakage can legitimately be inferred by reasonable minds but that there must in addition be proof of its quantum and amplitude though they do not indicate what the yard-stick of measurement should be. That is a proposition to which we are not able to assent.19. We are not prepared to perpetrate the error into which the learned High Court Judges permitted themselves to be led and examine the facts for overselves as a Court of appeal but in view of the strictures the High Court has made on the Vice-Chancellor and the Syndicate we are compelled to observe that we do not feel they are justified. The question was one of urgency and the Vice-Chancellor and the members of the Syndicate were well within their rights in exercising their discretion in the way they did. It may be that the matter could have been handled in some other way, as, for example, in the manner the learned Judges indicate, but it is not the function of Courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law.The University authorities acted honestly as reasonable and responsible men confronted with an urgent situation are entitled to act. They had experts or their own on their body. They examined others who in their opinion might throw light on the incident. They themselves compared the two papers and, after a deliberation of some six hours, arrived at an unanimous decision and then they reviewed the matter afresh at a second meeting with the assistance of one of their number who was not present on the first occasion. It is inaccurate to describe that as haste and unjust to characterise their action as unreasonable and lacking due care. This is decidedly not the sort of case in which a mandamus ought to issue. We accordingly set aside the order of the High Court.20. We now come to the undertaking given on behalf of the Vice-Chancellor. As we have observed, the Syndicate reached the conclusion that there had been a leakage and so cancelled the examinations and ordered fresh ones. Had the High Court not stepped in, those examinations would have been held nearly two and a half years ago and it is possible that all the students who were successful then would have passed again, or at any rate many of them would. But because of the High Courts order the examinations could not be held and the University was virtually directed to regard the examinations already held and the results already declared as good.The result has been that the students who passed have been studying and sitting for examinations in the higher classes for some two and a half years. If the status quo which would result from our setting aside of the High Courts order were to be resumed it would mean that those students would be put back to where they were two and a half years ago and would be compelled to do the courses which they have already covered all over again. In order to avoid such injustice we were told at the outset by counsel on behalf of the Vice-Chancellor that the University did not want to penalise them and so gave us the following undertaking drafted by the appellants counsel :"The students who are declared to have passed the first M.B.B.S Examination of the Utkal University held in April 1951 shall be deemed to have duly passed that examination and shall not be required to appear again in Anatomy." | 1[ds]The substance is more important than the form and if there is substantial compliance with the spirit and substance of the law we are not prepared to let an unessential defect in form defeat what is otherwise a proper and valid resolution. We, however, confine our remarks to the facts of this case where there was actual apperance without objection at meetings properly convened and where there was complete unanimity on both occasions. Where it would be proper to reach the same conclusion when there is a dissentient voice we are not prepared to say. In our opinion, the High Court was wrong in holding that the two resolutions were invalid. Whatever may be thought about each taken separately, the defects, If any, are in our judgment, cured when the two are read together and regarded as alearned Judges rightly hold that in a mandamus petition the High Court cannot constitute itself into a Court of appeal from the authority against which the appeal is sought, but having said that they went on to do just what they said they could not. The learned Judges appeared to consider that it is not enough to have facts established from which a leakage can legitimately be inferred by reasonable minds but that there must in addition be proof of its quantum and amplitude though they do not indicate what the yard-stick of measurement should be. That is a proposition to which we are not able toquestion was one of urgency and the Vice-Chancellor and the members of the Syndicate were well within their rights in exercising their discretion in the way they did. It may be that the matter could have been handled in some other way, as, for example, in the manner the learned Judges indicate, but it is not the function of Courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law.The University authorities acted honestly as reasonable and responsible men confronted with an urgent situation are entitled to act. They had experts or their own on their body. They examined others who in their opinion might throw light on the incident. They themselves compared the two papers and, after a deliberation of some six hours, arrived at an unanimous decision and then they reviewed the matter afresh at a second meeting with the assistance of one of their number who was not present on the first occasion. It is inaccurate to describe that as haste and unjust to characterise their action as unreasonable and lacking due care. This is decidedly not the sort of case in which a mandamus ought tothe status quo which would result from our setting aside of the High Courts order were to be resumed it would mean that those students would be put back to where they were two and a half years ago and would be compelled to do the courses which they have already covered all over again. | 1 | 2,731 | 534 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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Compagnie De Mayville v. Whitley, 1896-1 Ch 788 (C), and - Parker and Cooper ltd. v. Reading, 1926-1 Ch 975 (D); also, in the present case one of the items in the agenda of both notices was "other matters, if any".But it is not necessary to go into that because in this case these members did in fact attend one or other of the meetings and expressed their views, not individually, but as members of a meeting which was considering the matter, and there was unanimity on both occasions. Even on the stricter view taken in the cases relied on by counsel it is pointed out that want of due notice can be waived in given circumstances. Thus, if a person who was not noticed appears at the meeting and waives the irregularity, the defect is cured; so also when a person is too far away to be reached in time to enable him to communicate with the Committee before the meeting; the sending of a notice is then excused. See - AIR 1934 PC 62 (A) and - Young v. Ladies Imperial Club Ltd., (1920) 89 LJKB 536 (E).The substance is more important than the form and if there is substantial compliance with the spirit and substance of the law we are not prepared to let an unessential defect in form defeat what is otherwise a proper and valid resolution. We, however, confine our remarks to the facts of this case where there was actual apperance without objection at meetings properly convened and where there was complete unanimity on both occasions. Where it would be proper to reach the same conclusion when there is a dissentient voice we are not prepared to say. In our opinion, the High Court was wrong in holding that the two resolutions were invalid. Whatever may be thought about each taken separately, the defects, If any, are in our judgment, cured when the two are read together and regarded as a whole.18. We also think the High Court was wrong on the second point. The learned Judges rightly hold that in a mandamus petition the High Court cannot constitute itself into a Court of appeal from the authority against which the appeal is sought, but having said that they went on to do just what they said they could not. The learned Judges appeared to consider that it is not enough to have facts established from which a leakage can legitimately be inferred by reasonable minds but that there must in addition be proof of its quantum and amplitude though they do not indicate what the yard-stick of measurement should be. That is a proposition to which we are not able to assent.19. We are not prepared to perpetrate the error into which the learned High Court Judges permitted themselves to be led and examine the facts for overselves as a Court of appeal but in view of the strictures the High Court has made on the Vice-Chancellor and the Syndicate we are compelled to observe that we do not feel they are justified. The question was one of urgency and the Vice-Chancellor and the members of the Syndicate were well within their rights in exercising their discretion in the way they did. It may be that the matter could have been handled in some other way, as, for example, in the manner the learned Judges indicate, but it is not the function of Courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law.The University authorities acted honestly as reasonable and responsible men confronted with an urgent situation are entitled to act. They had experts or their own on their body. They examined others who in their opinion might throw light on the incident. They themselves compared the two papers and, after a deliberation of some six hours, arrived at an unanimous decision and then they reviewed the matter afresh at a second meeting with the assistance of one of their number who was not present on the first occasion. It is inaccurate to describe that as haste and unjust to characterise their action as unreasonable and lacking due care. This is decidedly not the sort of case in which a mandamus ought to issue. We accordingly set aside the order of the High Court.20. We now come to the undertaking given on behalf of the Vice-Chancellor. As we have observed, the Syndicate reached the conclusion that there had been a leakage and so cancelled the examinations and ordered fresh ones. Had the High Court not stepped in, those examinations would have been held nearly two and a half years ago and it is possible that all the students who were successful then would have passed again, or at any rate many of them would. But because of the High Courts order the examinations could not be held and the University was virtually directed to regard the examinations already held and the results already declared as good.The result has been that the students who passed have been studying and sitting for examinations in the higher classes for some two and a half years. If the status quo which would result from our setting aside of the High Courts order were to be resumed it would mean that those students would be put back to where they were two and a half years ago and would be compelled to do the courses which they have already covered all over again. In order to avoid such injustice we were told at the outset by counsel on behalf of the Vice-Chancellor that the University did not want to penalise them and so gave us the following undertaking drafted by the appellants counsel :"The students who are declared to have passed the first M.B.B.S Examination of the Utkal University held in April 1951 shall be deemed to have duly passed that examination and shall not be required to appear again in Anatomy."
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The substance is more important than the form and if there is substantial compliance with the spirit and substance of the law we are not prepared to let an unessential defect in form defeat what is otherwise a proper and valid resolution. We, however, confine our remarks to the facts of this case where there was actual apperance without objection at meetings properly convened and where there was complete unanimity on both occasions. Where it would be proper to reach the same conclusion when there is a dissentient voice we are not prepared to say. In our opinion, the High Court was wrong in holding that the two resolutions were invalid. Whatever may be thought about each taken separately, the defects, If any, are in our judgment, cured when the two are read together and regarded as alearned Judges rightly hold that in a mandamus petition the High Court cannot constitute itself into a Court of appeal from the authority against which the appeal is sought, but having said that they went on to do just what they said they could not. The learned Judges appeared to consider that it is not enough to have facts established from which a leakage can legitimately be inferred by reasonable minds but that there must in addition be proof of its quantum and amplitude though they do not indicate what the yard-stick of measurement should be. That is a proposition to which we are not able toquestion was one of urgency and the Vice-Chancellor and the members of the Syndicate were well within their rights in exercising their discretion in the way they did. It may be that the matter could have been handled in some other way, as, for example, in the manner the learned Judges indicate, but it is not the function of Courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law.The University authorities acted honestly as reasonable and responsible men confronted with an urgent situation are entitled to act. They had experts or their own on their body. They examined others who in their opinion might throw light on the incident. They themselves compared the two papers and, after a deliberation of some six hours, arrived at an unanimous decision and then they reviewed the matter afresh at a second meeting with the assistance of one of their number who was not present on the first occasion. It is inaccurate to describe that as haste and unjust to characterise their action as unreasonable and lacking due care. This is decidedly not the sort of case in which a mandamus ought tothe status quo which would result from our setting aside of the High Courts order were to be resumed it would mean that those students would be put back to where they were two and a half years ago and would be compelled to do the courses which they have already covered all over again.
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The State Of Rajasthan Vs. Nath Mal And Mitha Mal | what respects clause 25 can be said to be void as violating Part III of the Constitution. The clause authorises the Commissioner and various other authorities mentioned therein and such other officers as may be authorised by the Commissioner to freeze any stock of food grains held by a person. It is true that the authority of the Commissioner to delegate his powers to any other officer at his discretion is expressed in somewhat wide terms but we need not decide that that per se would be sufficient to invalidate the clause. Admittedly that power has not been exercised in the present case. Nor do we think that the power to freeze the stocks of food grains is arbitrary or based on no reasonable basis. It is not disputed that the clause does not state in express terms the circumstances in or the grounds on which the stocks may be freezed but it should be read along with Section 3 of the Essential Supplies Act which lays down the policy for controlling the production, supply and distribution of essential commodities. Section 3 in so far as it is material says:"The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof........." Sub-Section (2) lays down :"Without prejudice to the generality of the powers conferred by sub-Section (1), an order made there under may provide..... (a) ................... (b) ................... (c) .................... (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity; (e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale; ........................." 5. We are clear, therefore, that the freezing of stocks of food grains is reasonably related to the object which the Act was intended to achieve namely to secure the equitable, distribution and availability at fair prices and to regulate transport, distribution, disposal and acquisition of an essential commodity such as food grains. We do not agree with the High Court that the first portion of clause 25 is void under Article 19(1)(g). 6. The last portion of clause 25 to the effect that "such stock shall also be liable to be requisitioned or disposed of under orders of the said authority at the rate fixed for purposes of government procurement", however stands on a different footing. The clause, as it is worded, leaves it entirely to the Government to requisition the stocks at any rate fixed by it and to dispose of such stocks at any rate in its discretion. This obviously vests an unrestrained authority to requisition the stocks of food grains at an arbitrary price. In contrast with this provision we may refer to clauses 23 and 24 of the Control Order. They are as follows:"23. The Commissioner or the Director, and the Deputy Commissioner or the Senior Officer of a Jurisdictional Thikana with the approval of the Director, may fix the ceiling prices at which food grains in any area to which this order applies shall be sold, and may from time to time vary such prices." "24. The Commissioner, the Director, the Deputy Commissioner, the Nazim, the Assistant Commissioner, the Sub-Divisional Officer, or the Senior Officer of the jurisdictional Thikana as the case may be, may direct any person or persons in possession, whether on his own behalf or not of any foodgrains to sell such foodgrains or part thereof to any person or persons at any specified place and at such price as may be fixed under clause 23." 7. It appears from these clauses that while the authorities may fix the ceiling price at which foodgrains should ---be sold in the market by the dealers and may direct any person in possession of foodgrains to sell them to any other person at the price fixed under clause 23, there is no such limitation upon the power of the Government to acquire the stocks. In other words, it will be open to the Government to requisition the stocks at a price lower than the ceiling price thus causing loss to the persons whose stocks are freezed while at the same time the Government is free to sell the same stocks at a higher price and make a profit. It is obvious that the dealer whose stocks are thus freezed will stand to lose considerably and will be unable to carry on his trade or business at the prevailing market price. No dealer will be prepared to buy foodgrains at the market price when he knows that he is exposed to the risk of his stocks being freezed any moment and the same being requisitioned at the procurement rate. 8. The present is a typical case which illustrates how the business of a grain dealer can be paralysed, for it is admitted that while the Government procurement rate was Rs. 9 a maund, the market rate was Rs. 17 or Rs. 18 per maund, with the result that the stock holder suffered nearly cent per cent loss, while the Government made a profit of Rs. 4/5/4 per maund on the stock requisitioned. 9. We hold, therefore, that the last portion of clause 25 places an unreasonable restriction upon the carrying on the trade or business and is thus an infringement of the respondents right under Article 19(1)(g) of the Constitution and is, therefore, to that extent void. The same result follows if the impugned clause is examined in the light in the authority to acquire the stocks at any price fails to fix the amount of the compensation or specify the principles on which the compensation is to be determined. The clause leaves it entirely to the discretion of the executive authority to fix any compensation it likes. The High Court rightly held that the clause offended against Article 31(2). 10. | 0[ds]4. The Commissioner, the Director, the Deputy Commissioner, the Nazim, the Assistant Commissioner, the Sub-Divisional Officer, or the Senior Officer of the jurisdictional Thikana as the case may be, may direct any person or persons in possession, whether on his own behalf or not of any foodgrains to sell such foodgrains or part thereof to any person or persons at any specified place and at such price as may be fixed under clause 23."It appears from these clauses that while the authorities may fix the ceiling price at which foodgrains should ---be sold in the market by the dealers and may direct any person in possession of foodgrains to sell them to any other person at the price fixed under clause 23, there is no such limitation upon the power of the Government to acquire the stocks. In other words, it will be open to the Government to requisition the stocks at a price lower than the ceiling price thus causing loss to the persons whose stocks are freezed while at the same time the Government is free to sell the same stocks at a higher price and make a profit. It is obvious that the dealer whose stocks are thus freezed will stand to lose considerably and will be unable to carry on his trade or business at the prevailing market price. No dealer will be prepared to buy foodgrains at the market price when he knows that he is exposed to the risk of his stocks being freezed any moment and the same being requisitioned at the procurement rateThe present is a typical case which illustrates how the business of a grain dealer can be paralysed, for it is admitted that while the Government procurement rate was Rs. 9 a maund, the market rate was Rs. 17 or Rs. 18 per maund, with the result that the stock holder suffered nearly cent per cent loss, while the Government made a profit of Rs. 4/5/4 per maund on the stock requisitionedWe hold, therefore, that the last portion of clause 25 places an unreasonable restriction upon the carrying on the trade or business and is thus an infringement of the respondents right under Article 19(1)(g) of the Constitution and is, therefore, to that extent void. The same result follows if the impugned clause is examined in the light in the authority to acquire the stocks at any price fails to fix the amount of the compensation or specify the principles on which the compensation is to be determined. The clause leaves it entirely to the discretion of the executive authority to fix any compensation it likes. The High Court rightly held that the clause offended against Article 31(2). | 0 | 1,684 | 495 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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what respects clause 25 can be said to be void as violating Part III of the Constitution. The clause authorises the Commissioner and various other authorities mentioned therein and such other officers as may be authorised by the Commissioner to freeze any stock of food grains held by a person. It is true that the authority of the Commissioner to delegate his powers to any other officer at his discretion is expressed in somewhat wide terms but we need not decide that that per se would be sufficient to invalidate the clause. Admittedly that power has not been exercised in the present case. Nor do we think that the power to freeze the stocks of food grains is arbitrary or based on no reasonable basis. It is not disputed that the clause does not state in express terms the circumstances in or the grounds on which the stocks may be freezed but it should be read along with Section 3 of the Essential Supplies Act which lays down the policy for controlling the production, supply and distribution of essential commodities. Section 3 in so far as it is material says:"The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof........." Sub-Section (2) lays down :"Without prejudice to the generality of the powers conferred by sub-Section (1), an order made there under may provide..... (a) ................... (b) ................... (c) .................... (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity; (e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale; ........................." 5. We are clear, therefore, that the freezing of stocks of food grains is reasonably related to the object which the Act was intended to achieve namely to secure the equitable, distribution and availability at fair prices and to regulate transport, distribution, disposal and acquisition of an essential commodity such as food grains. We do not agree with the High Court that the first portion of clause 25 is void under Article 19(1)(g). 6. The last portion of clause 25 to the effect that "such stock shall also be liable to be requisitioned or disposed of under orders of the said authority at the rate fixed for purposes of government procurement", however stands on a different footing. The clause, as it is worded, leaves it entirely to the Government to requisition the stocks at any rate fixed by it and to dispose of such stocks at any rate in its discretion. This obviously vests an unrestrained authority to requisition the stocks of food grains at an arbitrary price. In contrast with this provision we may refer to clauses 23 and 24 of the Control Order. They are as follows:"23. The Commissioner or the Director, and the Deputy Commissioner or the Senior Officer of a Jurisdictional Thikana with the approval of the Director, may fix the ceiling prices at which food grains in any area to which this order applies shall be sold, and may from time to time vary such prices." "24. The Commissioner, the Director, the Deputy Commissioner, the Nazim, the Assistant Commissioner, the Sub-Divisional Officer, or the Senior Officer of the jurisdictional Thikana as the case may be, may direct any person or persons in possession, whether on his own behalf or not of any foodgrains to sell such foodgrains or part thereof to any person or persons at any specified place and at such price as may be fixed under clause 23." 7. It appears from these clauses that while the authorities may fix the ceiling price at which foodgrains should ---be sold in the market by the dealers and may direct any person in possession of foodgrains to sell them to any other person at the price fixed under clause 23, there is no such limitation upon the power of the Government to acquire the stocks. In other words, it will be open to the Government to requisition the stocks at a price lower than the ceiling price thus causing loss to the persons whose stocks are freezed while at the same time the Government is free to sell the same stocks at a higher price and make a profit. It is obvious that the dealer whose stocks are thus freezed will stand to lose considerably and will be unable to carry on his trade or business at the prevailing market price. No dealer will be prepared to buy foodgrains at the market price when he knows that he is exposed to the risk of his stocks being freezed any moment and the same being requisitioned at the procurement rate. 8. The present is a typical case which illustrates how the business of a grain dealer can be paralysed, for it is admitted that while the Government procurement rate was Rs. 9 a maund, the market rate was Rs. 17 or Rs. 18 per maund, with the result that the stock holder suffered nearly cent per cent loss, while the Government made a profit of Rs. 4/5/4 per maund on the stock requisitioned. 9. We hold, therefore, that the last portion of clause 25 places an unreasonable restriction upon the carrying on the trade or business and is thus an infringement of the respondents right under Article 19(1)(g) of the Constitution and is, therefore, to that extent void. The same result follows if the impugned clause is examined in the light in the authority to acquire the stocks at any price fails to fix the amount of the compensation or specify the principles on which the compensation is to be determined. The clause leaves it entirely to the discretion of the executive authority to fix any compensation it likes. The High Court rightly held that the clause offended against Article 31(2). 10.
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### Explanation:
4. The Commissioner, the Director, the Deputy Commissioner, the Nazim, the Assistant Commissioner, the Sub-Divisional Officer, or the Senior Officer of the jurisdictional Thikana as the case may be, may direct any person or persons in possession, whether on his own behalf or not of any foodgrains to sell such foodgrains or part thereof to any person or persons at any specified place and at such price as may be fixed under clause 23."It appears from these clauses that while the authorities may fix the ceiling price at which foodgrains should ---be sold in the market by the dealers and may direct any person in possession of foodgrains to sell them to any other person at the price fixed under clause 23, there is no such limitation upon the power of the Government to acquire the stocks. In other words, it will be open to the Government to requisition the stocks at a price lower than the ceiling price thus causing loss to the persons whose stocks are freezed while at the same time the Government is free to sell the same stocks at a higher price and make a profit. It is obvious that the dealer whose stocks are thus freezed will stand to lose considerably and will be unable to carry on his trade or business at the prevailing market price. No dealer will be prepared to buy foodgrains at the market price when he knows that he is exposed to the risk of his stocks being freezed any moment and the same being requisitioned at the procurement rateThe present is a typical case which illustrates how the business of a grain dealer can be paralysed, for it is admitted that while the Government procurement rate was Rs. 9 a maund, the market rate was Rs. 17 or Rs. 18 per maund, with the result that the stock holder suffered nearly cent per cent loss, while the Government made a profit of Rs. 4/5/4 per maund on the stock requisitionedWe hold, therefore, that the last portion of clause 25 places an unreasonable restriction upon the carrying on the trade or business and is thus an infringement of the respondents right under Article 19(1)(g) of the Constitution and is, therefore, to that extent void. The same result follows if the impugned clause is examined in the light in the authority to acquire the stocks at any price fails to fix the amount of the compensation or specify the principles on which the compensation is to be determined. The clause leaves it entirely to the discretion of the executive authority to fix any compensation it likes. The High Court rightly held that the clause offended against Article 31(2).
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Prakash Mahadeo Godse Vs. State of Maharashtra | interfere with the findings of fact reached by the High Court.6. We have now to see whether all or any of the circumstances enumerated above are incriminating in character and what is the cumulative effect of the proved circumstances.7. The fact that the accused went to the house of the grandmother of the deceased at about 4 p.m. on the day in question and enquired about P. W. 2 and his cousin affords no reasonable basis for the suspicion that he was there for enticing the deceased. It is not the case of prosecution that the appellant was acquainted with the deceased prior to that date. No witness has spoken to the fact that the appellant and the deceased were even seen together at any time prior to the date of the occurrence. The deceased was a permanent resident of Poona. She had come to Alibagh only a few days prior to the date of occurrence. She was a young girl aged about 9 years. From the material on record we cannot reasonably come to the conclusion that the appellant had gone to the house of the grandmother of the deceased on the evening in question with a view to entice the deceased. From the fact that the appellant made enquiries about P. W. 2 and his cousin when he went to the house of the grandmother of the deceased, no adverse inference can be drawn against the appellant. The shop of the appellant is just opposite that of P. W. 2. Therefore they should have known each other intimately. Under these circumstances we do not think that the High Court and the Trial Court were right in concluding that the circumstance that the appellant had been to the house of the grandmother of the deceased on the evening in question does in any manner incriminate against the appellant.8. We are also unable to draw any inference adverse to the appellant from the circumstance that very soon after he left the house of the grandmother of the deceased, the deceased also left that house. It is seen from the report made by P. W. 2 at the police station at about 7 p.m. on the date of the occurrence that usually the deceased used to go out of her house at about 4 p.m. for playing. Therefore the circumstance that the deceased left her house very soon after the appellant left her house is of no significance. It may be a more co-incidence.9. From the evidence on record, it is clear that somebody had raped the deceased and killed her. This circumstance by itself does not connect the accused with the crime.10. It is true that the accused and the deceased were seen going together towards Krida Bhavan at about 5 p.m. The accused has offered no explanation about the same. The dead body of the deceased was seen at about 8 p.m. These facts highly incriminating in character. They raise a strong suspicion against the appellant.11. It is said that at 5-30 p.m. the accused was found standing in front of one of the huts near the Krida Bhavan. But there is no evidence to show that he was standing in front of the hut in which the dead body of the deceased was found. P. W. 4 Magahan says that he happened to pass that way at about 5-30 p.m. on that day. The appellant is said to have asked for a match box from him but when he offered a match box, the appellant is alleged to have changed his mind and told P. W. 4 that he did not want the match box and asked P. W. 4 to go away from that place. From these facts the courts below have come to the conclusion that the appellant was found to have been in a confused state of mind at about 5-30 p.m. on the date of the occurrence. It is very difficult to gauge the state of mind of an individual. It is not unlikely that P. W. 4 formed his opinion about the state of mind of the appellant at the time in question only after he came to know the fact that he (the appellant) was suspected to have murdered a young girl.12. The fact that the appellant ran away and hid himself when people tried to catch hold of him does not lead to a firm conclusion that he behaved in that manner because he had a guilty mind. Even most innocent persons when suspected of grave crimes are likely to evade their arrest. The instinct of self-preservation is uppermost in the mind of an ordinary man. The courts have refused to attach much significance to abscondent evidence.13. The only other circumstance found against the appellant is that blood was detected in his pyjama. This circumstance would have been of considerable importance if it had been satisfactorily established. The suspected blood patch was unsuitable for chemical examination. Therefore there is no evidence to show that blood was detected in the pyjama of the appellant.14. From the above discussion it is seen that out of the several circumstances found to have been established by the Trial Court as well as by the High Court, most of them must be held to be innocuous. The principal incriminating circumstance established against the appellant is the proof of the fact that he was seen proceeding with the deceased towards the Krida Bhavan at about 5 p.m. on the date of the occurrence. That circumstance remains unexplained by the appellant. To this we may add that the appellant was found standing in front of one of the cottages near the Krida Bhavan at about 5-30 p.m. These facts taken along with the other facts of the case undoubtedly raise a grave suspicion against the accused. But in our opinion they are insufficient to hold the appellant guilty of the offences with which the place of proof and therefore the appellant is entitled to the benefit of doubt. | 1[ds]3. The case against the appellant rests entirely on circumstantial evidence. Therefore we have first to see whether the circumstances put forward have been satisfactorily established. Next we have to see whether all or any of those circumstances are incriminating in character and whether the proved circumstances are such as to establish a reasonably conclusion case against the appellant. Those circumstances must not only be compatible with his guilt but they should also be incompatible with his innocence. In other words they must not be capable of suggesting any reasonable hypothesis other than the guilt of the appellant. There must be a chain of circumstances so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; see Hanumant v. State of Madhya Pradesh.4. We shall now examine the circumstances held to have been established against the appellant on the basis of the tests noticed above. The High Court agreeing with the Trial Court has come to the conclusion that the following seven circumstances have been established against the appellantThe appellant visited the residence of the grandmother of the deceased at about 4 p.m. on October 13, 1967 and there made enquiries about P. W. 2 and his cousin Zumbar. Finding that they were not at home he went away;(2) Almost immediately after the appellant left that place, the deceased also left her house telling her grandmother that she would return within a short time but she never returned. Later her dead body was found in one of the cottages near Krida Bhavan at about 8 p.m. on the same day;(3) At about 5 p.m. on that day, the appellant and the deceased were seen going together towards the cottages near Krida Bhavan;(4) At about 5-30 p.m. on the same day, the appellant was seen in a confused state of mind by the said of cottages near KridaThe dead body of the deceased was found at 8 p.m. on the same day in one of the cottages near Krida Bhavan wrapped in a net. The examination of the dead body showed that the deceased must have been ravished and strangled;(6) At about 9-30 p.m. on the same day when the appellant was returning to his house, some of the persons who were on the road tried to catch hold of him; then he ran away frantically, jumped from the bridge over which he was passing and hid himself in mud near the sea-shore; and(7) Blood was detected on the accuseds pyjama.Both the High Court as well as the Trial Court have concurrently found that the circumstances enumerated above are satisfactorily established. We have gone through the evidence on record and we see no reason to differ from the conclusions reached by these courts. Ordinarily this Court does not interfere with the findings of fact reached by the High Court.6. We have now to see whether all or any of the circumstances enumerated above are incriminating in character and what is the cumulative effect of the proved circumstances.7. The fact that the accused went to the house of the grandmother of the deceased at about 4 p.m. on the day in question and enquired about P. W. 2 and his cousin affords no reasonable basis for the suspicion that he was there for enticing the deceased. It is not the case of prosecution that the appellant was acquainted with the deceased prior to that date. No witness has spoken to the fact that the appellant and the deceased were even seen together at any time prior to the date of the occurrence. The deceased was a permanent resident of Poona. She had come to Alibagh only a few days prior to the date of occurrence. She was a young girl aged about 9 years. From the material on record we cannot reasonably come to the conclusion that the appellant had gone to the house of the grandmother of the deceased on the evening in question with a view to entice the deceased. From the fact that the appellant made enquiries about P. W. 2 and his cousin when he went to the house of the grandmother of the deceased, no adverse inference can be drawn against the appellant. The shop of the appellant is just opposite that of P. W. 2. Therefore they should have known each other intimately. Under these circumstances we do not think that the High Court and the Trial Court were right in concluding that the circumstance that the appellant had been to the house of the grandmother of the deceased on the evening in question does in any manner incriminate against the appellant.8. We are also unable to draw any inference adverse to the appellant from the circumstance that very soon after he left the house of the grandmother of the deceased, the deceased also left that house. It is seen from the report made by P. W. 2 at the police station at about 7 p.m. on the date of the occurrence that usually the deceased used to go out of her house at about 4 p.m. for playing. Therefore the circumstance that the deceased left her house very soon after the appellant left her house is of no significance. It may be a more co-incidence.9. From the evidence on record, it is clear that somebody had raped the deceased and killed her. This circumstance by itself does not connect the accused with the crime.10. It is true that the accused and the deceased were seen going together towards Krida Bhavan at about 5 p.m. The accused has offered no explanation about the same. The dead body of the deceased was seen at about 8 p.m. These facts highly incriminating in character. They raise a strong suspicion against the appellant.The fact that the appellant ran away and hid himself when people tried to catch hold of him does not lead to a firm conclusion that he behaved in that manner because he had a guilty mind. Even most innocent persons when suspected of grave crimes are likely to evade their arrest. The instinct of self-preservation is uppermost in the mind of an ordinary man. The courts have refused to attach much significance to abscondent evidence.The only other circumstance found against the appellant is that blood was detected in his pyjama. This circumstance would have been of considerable importance if it had been satisfactorily established. The suspected blood patch was unsuitable for chemical examination. Therefore there is no evidence to show that blood was detected in the pyjama of the appellant.14. From the above discussion it is seen that out of the several circumstances found to have been established by the Trial Court as well as by the High Court, most of them must be held to be innocuous. The principal incriminating circumstance established against the appellant is the proof of the fact that he was seen proceeding with the deceased towards the Krida Bhavan at about 5 p.m. on the date of the occurrence. That circumstance remains unexplained by the appellant. To this we may add that the appellant was found standing in front of one of the cottages near the Krida Bhavan at about 5-30 p.m. These facts taken along with the other facts of the case undoubtedly raise a grave suspicion against the accused. But in our opinion they are insufficient to hold the appellant guilty of the offences with which the place of proof and therefore the appellant is entitled to the benefit of doubt.The fact that the appellant ran away and hid himself when people tried to catch hold of him does not lead to a firm conclusion that he behaved in that manner because he had a guilty mind. Even most innocent persons when suspected of grave crimes are likely to evade their arrest. The instinct ofis uppermost in the mind of an ordinary man. The courts have refused to attach much significance to abscondent evidence.e only other circumstance found against the appellant is that blood was detected in his pyjama. This circumstance would have been of considerable importance if it had been satisfactorily established. The suspected blood patch was unsuitable for chemical examination. Therefore there is no evidence to show that blood was detected in the pyjama of the appellant.14. From the above discussion it is seen that out of the several circumstances found to have been established by the Trial Court as well as by the High Court, most of them must be held to be innocuous. The principal incriminating circumstance established against the appellant is the proof of the fact that he was seen proceeding with the deceased towards the Krida Bhavan at about 5 p.m. on the date of the occurrence. That circumstance remains unexplained by the appellant. To this we may add that the appellant was found standing in front of one of the cottages near the Krida Bhavan at aboutp.m. These facts taken along with the other facts of the case undoubtedly raise a grave suspicion against the accused. But in our opinion they are insufficient to hold the appellant guilty of the offences with which the place of proof and therefore the appellant is entitled to the benefit of doubt. | 1 | 2,048 | 1,634 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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interfere with the findings of fact reached by the High Court.6. We have now to see whether all or any of the circumstances enumerated above are incriminating in character and what is the cumulative effect of the proved circumstances.7. The fact that the accused went to the house of the grandmother of the deceased at about 4 p.m. on the day in question and enquired about P. W. 2 and his cousin affords no reasonable basis for the suspicion that he was there for enticing the deceased. It is not the case of prosecution that the appellant was acquainted with the deceased prior to that date. No witness has spoken to the fact that the appellant and the deceased were even seen together at any time prior to the date of the occurrence. The deceased was a permanent resident of Poona. She had come to Alibagh only a few days prior to the date of occurrence. She was a young girl aged about 9 years. From the material on record we cannot reasonably come to the conclusion that the appellant had gone to the house of the grandmother of the deceased on the evening in question with a view to entice the deceased. From the fact that the appellant made enquiries about P. W. 2 and his cousin when he went to the house of the grandmother of the deceased, no adverse inference can be drawn against the appellant. The shop of the appellant is just opposite that of P. W. 2. Therefore they should have known each other intimately. Under these circumstances we do not think that the High Court and the Trial Court were right in concluding that the circumstance that the appellant had been to the house of the grandmother of the deceased on the evening in question does in any manner incriminate against the appellant.8. We are also unable to draw any inference adverse to the appellant from the circumstance that very soon after he left the house of the grandmother of the deceased, the deceased also left that house. It is seen from the report made by P. W. 2 at the police station at about 7 p.m. on the date of the occurrence that usually the deceased used to go out of her house at about 4 p.m. for playing. Therefore the circumstance that the deceased left her house very soon after the appellant left her house is of no significance. It may be a more co-incidence.9. From the evidence on record, it is clear that somebody had raped the deceased and killed her. This circumstance by itself does not connect the accused with the crime.10. It is true that the accused and the deceased were seen going together towards Krida Bhavan at about 5 p.m. The accused has offered no explanation about the same. The dead body of the deceased was seen at about 8 p.m. These facts highly incriminating in character. They raise a strong suspicion against the appellant.11. It is said that at 5-30 p.m. the accused was found standing in front of one of the huts near the Krida Bhavan. But there is no evidence to show that he was standing in front of the hut in which the dead body of the deceased was found. P. W. 4 Magahan says that he happened to pass that way at about 5-30 p.m. on that day. The appellant is said to have asked for a match box from him but when he offered a match box, the appellant is alleged to have changed his mind and told P. W. 4 that he did not want the match box and asked P. W. 4 to go away from that place. From these facts the courts below have come to the conclusion that the appellant was found to have been in a confused state of mind at about 5-30 p.m. on the date of the occurrence. It is very difficult to gauge the state of mind of an individual. It is not unlikely that P. W. 4 formed his opinion about the state of mind of the appellant at the time in question only after he came to know the fact that he (the appellant) was suspected to have murdered a young girl.12. The fact that the appellant ran away and hid himself when people tried to catch hold of him does not lead to a firm conclusion that he behaved in that manner because he had a guilty mind. Even most innocent persons when suspected of grave crimes are likely to evade their arrest. The instinct of self-preservation is uppermost in the mind of an ordinary man. The courts have refused to attach much significance to abscondent evidence.13. The only other circumstance found against the appellant is that blood was detected in his pyjama. This circumstance would have been of considerable importance if it had been satisfactorily established. The suspected blood patch was unsuitable for chemical examination. Therefore there is no evidence to show that blood was detected in the pyjama of the appellant.14. From the above discussion it is seen that out of the several circumstances found to have been established by the Trial Court as well as by the High Court, most of them must be held to be innocuous. The principal incriminating circumstance established against the appellant is the proof of the fact that he was seen proceeding with the deceased towards the Krida Bhavan at about 5 p.m. on the date of the occurrence. That circumstance remains unexplained by the appellant. To this we may add that the appellant was found standing in front of one of the cottages near the Krida Bhavan at about 5-30 p.m. These facts taken along with the other facts of the case undoubtedly raise a grave suspicion against the accused. But in our opinion they are insufficient to hold the appellant guilty of the offences with which the place of proof and therefore the appellant is entitled to the benefit of doubt.
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1
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and his cousin affords no reasonable basis for the suspicion that he was there for enticing the deceased. It is not the case of prosecution that the appellant was acquainted with the deceased prior to that date. No witness has spoken to the fact that the appellant and the deceased were even seen together at any time prior to the date of the occurrence. The deceased was a permanent resident of Poona. She had come to Alibagh only a few days prior to the date of occurrence. She was a young girl aged about 9 years. From the material on record we cannot reasonably come to the conclusion that the appellant had gone to the house of the grandmother of the deceased on the evening in question with a view to entice the deceased. From the fact that the appellant made enquiries about P. W. 2 and his cousin when he went to the house of the grandmother of the deceased, no adverse inference can be drawn against the appellant. The shop of the appellant is just opposite that of P. W. 2. Therefore they should have known each other intimately. Under these circumstances we do not think that the High Court and the Trial Court were right in concluding that the circumstance that the appellant had been to the house of the grandmother of the deceased on the evening in question does in any manner incriminate against the appellant.8. We are also unable to draw any inference adverse to the appellant from the circumstance that very soon after he left the house of the grandmother of the deceased, the deceased also left that house. It is seen from the report made by P. W. 2 at the police station at about 7 p.m. on the date of the occurrence that usually the deceased used to go out of her house at about 4 p.m. for playing. Therefore the circumstance that the deceased left her house very soon after the appellant left her house is of no significance. It may be a more co-incidence.9. From the evidence on record, it is clear that somebody had raped the deceased and killed her. This circumstance by itself does not connect the accused with the crime.10. It is true that the accused and the deceased were seen going together towards Krida Bhavan at about 5 p.m. The accused has offered no explanation about the same. The dead body of the deceased was seen at about 8 p.m. These facts highly incriminating in character. They raise a strong suspicion against the appellant.The fact that the appellant ran away and hid himself when people tried to catch hold of him does not lead to a firm conclusion that he behaved in that manner because he had a guilty mind. Even most innocent persons when suspected of grave crimes are likely to evade their arrest. The instinct of self-preservation is uppermost in the mind of an ordinary man. The courts have refused to attach much significance to abscondent evidence.The only other circumstance found against the appellant is that blood was detected in his pyjama. This circumstance would have been of considerable importance if it had been satisfactorily established. The suspected blood patch was unsuitable for chemical examination. Therefore there is no evidence to show that blood was detected in the pyjama of the appellant.14. From the above discussion it is seen that out of the several circumstances found to have been established by the Trial Court as well as by the High Court, most of them must be held to be innocuous. The principal incriminating circumstance established against the appellant is the proof of the fact that he was seen proceeding with the deceased towards the Krida Bhavan at about 5 p.m. on the date of the occurrence. That circumstance remains unexplained by the appellant. To this we may add that the appellant was found standing in front of one of the cottages near the Krida Bhavan at about 5-30 p.m. These facts taken along with the other facts of the case undoubtedly raise a grave suspicion against the accused. But in our opinion they are insufficient to hold the appellant guilty of the offences with which the place of proof and therefore the appellant is entitled to the benefit of doubt.The fact that the appellant ran away and hid himself when people tried to catch hold of him does not lead to a firm conclusion that he behaved in that manner because he had a guilty mind. Even most innocent persons when suspected of grave crimes are likely to evade their arrest. The instinct ofis uppermost in the mind of an ordinary man. The courts have refused to attach much significance to abscondent evidence.e only other circumstance found against the appellant is that blood was detected in his pyjama. This circumstance would have been of considerable importance if it had been satisfactorily established. The suspected blood patch was unsuitable for chemical examination. Therefore there is no evidence to show that blood was detected in the pyjama of the appellant.14. From the above discussion it is seen that out of the several circumstances found to have been established by the Trial Court as well as by the High Court, most of them must be held to be innocuous. The principal incriminating circumstance established against the appellant is the proof of the fact that he was seen proceeding with the deceased towards the Krida Bhavan at about 5 p.m. on the date of the occurrence. That circumstance remains unexplained by the appellant. To this we may add that the appellant was found standing in front of one of the cottages near the Krida Bhavan at aboutp.m. These facts taken along with the other facts of the case undoubtedly raise a grave suspicion against the accused. But in our opinion they are insufficient to hold the appellant guilty of the offences with which the place of proof and therefore the appellant is entitled to the benefit of doubt.
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Hansraj Gordhandas Vs. H. H. Dave, Assistant Collector Of Central Excise | owned by the Co-operative Society or on powerlooms allotted to its members and it was not a relevant consideration as to who produced or manufactured such fabrics, whether it was the Society itself or its members or even outsiders. It was conceded by the appellant that it was the owner of the cotton fabrics. But even upon that assumption the claim of the appellant is that is was entitled to exemption from excise duty as it was covered by the language of the two notifications already referred to. In our opinion the argument of the appellant is well founded and must be accepted as correct. The notification dated July 31, 1959 grants exemption to "cotton fabrics produced by any Co-operative Society formed of owners of cotton powerlooms which is registered or which may be registered on or before March 31, 1961" subject to four conditions set out in the notification. In the next notification dated April 30, 1960 exemption was granted to "cotton fabrics produced on powerlooms owned by any co-operative society or owned by or allotted to the members of the society, which is registered or which may be registered on or before March 31, 1961" subject to the conditions specified in the notification. It was contended on behalf of the appellant that under the contract between the appellant and the Society there was no relationship of master and servant but the appellant supplied raw material and the contractor i.e., the Society produced the goods. But even on the assumption that the appellant had manufactured the goods by employing hired labour and was therefore a manufacturer, still the appellant was entitled to exemption from excise duty since the case fell within the language of the two notifications dated July 31, 1959 and April 30, 1960, and the cotton fabrics were produced on powerlooms owned by the co-operative society and there is nothing in the notifications to suggest that the cotton fabrics should be produced by the Co-operative Society "for itself" and not for a third party before it was entitled to claim exemption from excise duty.7. It was contended on behalf of the respondent that the object of granting exemption was to encourage the formation of co-operative societies which not only produced cotton fabrics but which also consisted of members, not only owning but having actually operated not more than four powerlooms during the three years immediately preceding their having joined the society. The policy was that instead of each such member operating his looms on his own, he should combine with others by forming a society which, through the co-operative effort should produce cloth.The intention was that the goods produced for which exemption could be claimed must be goods produced on its own behalf by the society.We are unable to accept the contention put forward on behalf of the respondents as correct. On a true construction of the language of the notifications dated 31, July 1959 and April 30, 1960 it is clear that all that is required for claiming exemption is that the cotton fabrics must be produced on power-looms owned by the co-operative society. There is no further requirement under the two notifications that the cotton fabrics must be produced by the Co-operative Society on the power looms "for itself".It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority.If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom ,the matter is different but that is not the case here. In this connection we may refer to the observations of Lord Watson in Salomon v. Salomon and Co., 1897 AC 22 at p. 38:"Intention of the legislature is a common but very slippery phrase, which, popularly understood may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there was been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonably and necessary implication."It is an application of this principle that a statutory notification may not be extended so as to meet a casus omissus. As appears in the judgment of the Privy Council in Crawford. v. Spooner, (1846) 6 Moo PC 1 (9):"........ we cannot aid the legislatures defective phrasing of the Act, we cannot add, and mend, and, by construction, make up deficiencies which are left there."8. Learned Counsel for the respondents is possibly right in his submission that the object behind the two notifications is to encourage the actual manufacturers of handloom cloth to switch over to powerlooms by constituting themselves into Co-operative Societies,But the operation of the notifications has to be judged not by the object which the rule-making authority had in mind but by the words which it has employed to effectuate the legislative intent.Applying this principle we are of opinion that the case of the appellant is covered by the language of the two notifications dated July 31, 1959 and April 30, 1960 and the appellant is entitled to exemption from excise duty for the cotton fabrics produced for the period between October 1, 1959 to April 30, 1960 and from May 1, 1960 to January 3, 1961. It follows therefore that the appellant is entitled to the grant of a writ in the nature of certiorari to quash the order of the Assistant Collector of Central Excise of Baroda dated November 26, 1962 and the appellate order of the Collector of Central Excise dated November 12, 1963.9. | 1[ds]In our opinion the argument of the appellant is well founded and must be accepted as correct. The notification dated July 31, 1959 grants exemption to "cotton fabrics produced by any Co-operative Society formed of owners of cotton powerlooms which is registered or which may be registered on or before March 31, 1961" subject to four conditions set out in the notification. In the next notification dated April 30, 1960 exemption was granted to "cotton fabrics produced on powerlooms owned by any co-operative society or owned by or allotted to the members of the society, which is registered or which may be registered on or before March 31, 1961" subject to the conditions specified in the notification. It was contended on behalf of the appellant that under the contract between the appellant and the Society there was no relationship of master and servant but the appellant supplied raw material and the contractor i.e., the Society produced the goods. But even on the assumption that the appellant had manufactured the goods by employing hired labour and was therefore a manufacturer, still the appellant was entitled to exemption from excise duty since the case fell within the language of the two notifications dated July 31, 1959 and April 30, 1960, and the cotton fabrics were produced on powerlooms owned by the co-operative society and there is nothing in the notifications to suggest that the cotton fabrics should be produced by the Co-operative Society "for itself" and not for a third party before it was entitled to claim exemption from excise duty.It was contended on behalf of the respondent that the object of granting exemption was to encourage the formation of co-operative societies which not only produced cotton fabrics but which also consisted of members, not only owning but having actually operated not more than four powerlooms during the three years immediately preceding their having joined the society. The policy was that instead of each such member operating his looms on his own, he should combine with others by forming a society which, through the co-operative effort should produce cloth.The intention was that the goods produced for which exemption could be claimed must be goods produced on its own behalf by the society.We are unable to accept the contention put forward on behalf of the respondents as correct. On a true construction of the language of the notifications dated 31, July 1959 and April 30, 1960 it is clear that all that is required for claiming exemption is that the cotton fabrics must be produced on power-looms owned by the co-operative society. There is no further requirement under the two notifications that the cotton fabrics must be produced by the Co-operative Society on the power looms "for itself".It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority.If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom ,the matter is different but that is not the case here. | 1 | 3,017 | 592 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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owned by the Co-operative Society or on powerlooms allotted to its members and it was not a relevant consideration as to who produced or manufactured such fabrics, whether it was the Society itself or its members or even outsiders. It was conceded by the appellant that it was the owner of the cotton fabrics. But even upon that assumption the claim of the appellant is that is was entitled to exemption from excise duty as it was covered by the language of the two notifications already referred to. In our opinion the argument of the appellant is well founded and must be accepted as correct. The notification dated July 31, 1959 grants exemption to "cotton fabrics produced by any Co-operative Society formed of owners of cotton powerlooms which is registered or which may be registered on or before March 31, 1961" subject to four conditions set out in the notification. In the next notification dated April 30, 1960 exemption was granted to "cotton fabrics produced on powerlooms owned by any co-operative society or owned by or allotted to the members of the society, which is registered or which may be registered on or before March 31, 1961" subject to the conditions specified in the notification. It was contended on behalf of the appellant that under the contract between the appellant and the Society there was no relationship of master and servant but the appellant supplied raw material and the contractor i.e., the Society produced the goods. But even on the assumption that the appellant had manufactured the goods by employing hired labour and was therefore a manufacturer, still the appellant was entitled to exemption from excise duty since the case fell within the language of the two notifications dated July 31, 1959 and April 30, 1960, and the cotton fabrics were produced on powerlooms owned by the co-operative society and there is nothing in the notifications to suggest that the cotton fabrics should be produced by the Co-operative Society "for itself" and not for a third party before it was entitled to claim exemption from excise duty.7. It was contended on behalf of the respondent that the object of granting exemption was to encourage the formation of co-operative societies which not only produced cotton fabrics but which also consisted of members, not only owning but having actually operated not more than four powerlooms during the three years immediately preceding their having joined the society. The policy was that instead of each such member operating his looms on his own, he should combine with others by forming a society which, through the co-operative effort should produce cloth.The intention was that the goods produced for which exemption could be claimed must be goods produced on its own behalf by the society.We are unable to accept the contention put forward on behalf of the respondents as correct. On a true construction of the language of the notifications dated 31, July 1959 and April 30, 1960 it is clear that all that is required for claiming exemption is that the cotton fabrics must be produced on power-looms owned by the co-operative society. There is no further requirement under the two notifications that the cotton fabrics must be produced by the Co-operative Society on the power looms "for itself".It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority.If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom ,the matter is different but that is not the case here. In this connection we may refer to the observations of Lord Watson in Salomon v. Salomon and Co., 1897 AC 22 at p. 38:"Intention of the legislature is a common but very slippery phrase, which, popularly understood may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there was been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonably and necessary implication."It is an application of this principle that a statutory notification may not be extended so as to meet a casus omissus. As appears in the judgment of the Privy Council in Crawford. v. Spooner, (1846) 6 Moo PC 1 (9):"........ we cannot aid the legislatures defective phrasing of the Act, we cannot add, and mend, and, by construction, make up deficiencies which are left there."8. Learned Counsel for the respondents is possibly right in his submission that the object behind the two notifications is to encourage the actual manufacturers of handloom cloth to switch over to powerlooms by constituting themselves into Co-operative Societies,But the operation of the notifications has to be judged not by the object which the rule-making authority had in mind but by the words which it has employed to effectuate the legislative intent.Applying this principle we are of opinion that the case of the appellant is covered by the language of the two notifications dated July 31, 1959 and April 30, 1960 and the appellant is entitled to exemption from excise duty for the cotton fabrics produced for the period between October 1, 1959 to April 30, 1960 and from May 1, 1960 to January 3, 1961. It follows therefore that the appellant is entitled to the grant of a writ in the nature of certiorari to quash the order of the Assistant Collector of Central Excise of Baroda dated November 26, 1962 and the appellate order of the Collector of Central Excise dated November 12, 1963.9.
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1
### Explanation:
In our opinion the argument of the appellant is well founded and must be accepted as correct. The notification dated July 31, 1959 grants exemption to "cotton fabrics produced by any Co-operative Society formed of owners of cotton powerlooms which is registered or which may be registered on or before March 31, 1961" subject to four conditions set out in the notification. In the next notification dated April 30, 1960 exemption was granted to "cotton fabrics produced on powerlooms owned by any co-operative society or owned by or allotted to the members of the society, which is registered or which may be registered on or before March 31, 1961" subject to the conditions specified in the notification. It was contended on behalf of the appellant that under the contract between the appellant and the Society there was no relationship of master and servant but the appellant supplied raw material and the contractor i.e., the Society produced the goods. But even on the assumption that the appellant had manufactured the goods by employing hired labour and was therefore a manufacturer, still the appellant was entitled to exemption from excise duty since the case fell within the language of the two notifications dated July 31, 1959 and April 30, 1960, and the cotton fabrics were produced on powerlooms owned by the co-operative society and there is nothing in the notifications to suggest that the cotton fabrics should be produced by the Co-operative Society "for itself" and not for a third party before it was entitled to claim exemption from excise duty.It was contended on behalf of the respondent that the object of granting exemption was to encourage the formation of co-operative societies which not only produced cotton fabrics but which also consisted of members, not only owning but having actually operated not more than four powerlooms during the three years immediately preceding their having joined the society. The policy was that instead of each such member operating his looms on his own, he should combine with others by forming a society which, through the co-operative effort should produce cloth.The intention was that the goods produced for which exemption could be claimed must be goods produced on its own behalf by the society.We are unable to accept the contention put forward on behalf of the respondents as correct. On a true construction of the language of the notifications dated 31, July 1959 and April 30, 1960 it is clear that all that is required for claiming exemption is that the cotton fabrics must be produced on power-looms owned by the co-operative society. There is no further requirement under the two notifications that the cotton fabrics must be produced by the Co-operative Society on the power looms "for itself".It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority.If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom ,the matter is different but that is not the case here.
|
Gamini Krishnayya And Others Vs. Curza Seshachalam And Others | otiose. If that was the intention, the words interest outstanding would serve the purpose as well. The word all, therefore, cannot be ignored and must be given a meaning. It indicates that the entire interest, which a debt earned, is scaled down."19. The next decision referred to is that in Mansoor v. Sankarapandia, ILR (1959) Mad 57 : (AIR 1959 Mad 96 ) (FB). That was a decision of the Full Bench of the High Court and the points which arose for consideration and the decision of the Court are correctly summarised in the following head note:"Section 13 of the Madras Agriculturists Relief Act (IV of 1938) deals with debts incurred after the Act. Under that Section there is no provision for any automatic discharge of interest stipulated at a rate higher than that prescribed therein. Such excess interest is only made irrecoverable if the creditor sought to enforce it in a Court of law. There being neither a prohibition against a stipulation for payment for an automatic discharge of higher rates of interest agreed to be paid by an agriculturist debtor, it cannot be said that, when a creditor in regard to a debt contracted after the Act with the assent of his debtor added to the principal loan the interest accrued in terms of the contract and the debtor entered into a fresh contract treating the consolidated amount as principal for the fresh loan, there would be nothing illegal or even a failure of consideration in regard to the new loan. Such a new loan would constitute the debt incurred on the date of renewal and if a suit is based on that debt, the provisions of S.13 could be attracted to that debt alone and not to the earlier debt of which it was a renewal or substitution.The power to go behind a suit debt and to apply the provisions of the Act for the original liability is confined only to cases falling under Sections 8 and 9 of the Act. But even in cases coming under Section 13 it would be open to the defendants to plead and prove that the debt sued on could not form the basis of an action or that there was a failure of consideration in respect of it. Such a defence is not by virtue of anything in or peculiar to the Act, but one under the general law. In cases where a debt was contracted prior to the Act, but renewed after the Act by one or series of successive documents, such renewals including interest at the contract rate; which had been, statutorily discharged by reason of the provisions of Sections 8 and 9 of the Act, there would be a failure of consideration to the extent to which the interest was so discharged. This principle will or can have no application in the case of a debt incurred after the Act and renewed thereafter. In those cases there would be no failure of consideration, for no portion of interest has been discharged by Section 13, it being open to the debtor to agree to pay the higher stipulated rate of interest."That again was a case where the original indebtedness was subsequent to the commencement of the Act and, therefore, stands on a footing different from the one before us. The observations made by the court in the case upon which reliance is placed on behalf of the appellants appear to have been limited by the learned Judges to cases which fall under S. 13 alone. Since, however, the learned Judges seem to have accepted the view taken in Thiruvengadatha Ayyangars case, ILR (1942) Mad 57 : (AIR 1941 Mad 799 (2)) it is necessary for us to say that to that extent we do not concur in the view taken by them. It has to be remembered that where the plaintiff sues upon a document executed after the commencement of the Act the Court has to bear in mind also the provisions of S. 9 inasmuch as the document is one executed after October 1, 1932. If the pleadings show that the original indebtedness commenced before the coming into force of the Act the court will first have to deal with the document with reference to the provisions which precede S. 13 of the Act. It is not as if the Court has to shut its eyes to everything except the fact that the document sued upon was excited subsequent to the commencement of the Act. Therefore, if the court finds that the original indebtedness arose prior to the commencement of the Act either S. 8 or S. 9 will apply and it would not be relevant for it, to consider whether-by executing a renewal after the commencement of the Act the parties agreed to treat the interest accrued up to the date of renewal as principal from the date of the renewal of the debt. That consideration may be relevant in cases which completely exclude the applicability of Ss. 8 and 9.20. We were also referred to the decision in Punvavatamma v. Satyanarayana, ILR (1960) 2 Andh Pra 11 ; Nagabhushanam v. Seetharamaiah, ILR (1961) 1 Andh Pra 485 : (AIR 1961 Andh Pra 224) (FB) and Chellammal v. Abdul Gaffoor Sahib, ILR (1961) Mad 1061 : (AIR 1962 Mad 1 ) ( FB). In the first and the third of these cases the original liability arose after the commencement of the Act but in second one it arose before the commencement of the Act. We agree with the view taken in the latter case that relief can be given to an agriculturist in such a case under S. 8 or S. 9 as the case may be.21. Thus it would appear that wherever a transaction was entered into after the commencement of the Act but the original indebtedness arose before the commencement of the Act, the preponderant view is that Ss. 8 and 9 would not be inapplicable. That, as already stated, is also our view. | 0[ds]In one sense he is right because S. 13 also provides for the staling down of interest due on a debt incurred after the commencement of the Act. But it has to be borne in mind that a debt incurred after the commencement of the Act will not cease to be a debt incurred after October 1, 1932. It is common place that every provision of a statute has to be given full effect and wherever possible the Court should not place that construction upon a provision which would tend to make it redundant or to overlap another provision or to limit its application in disregard of its general applicability unless, of course, that is the only construction which could be reasonably placed upon it. If Mr. Bhimasankarams contention is accepted we will have to limit the application of S. 9 only to such of the debts incurred after October 1, 1932 as were incurred prior to the commencement of the Act. There is nothing in the language of the section which would justify so limiting its provisions. Nor again is there anything in S.13 which would preclude the application of S. 9 to any case whatsoever of a debt incurred after the commencement of the Act. For a debt may have been incurred after the commencement of the Act in the sense that the last transaction with respect to indebtedness may have been entered into, after the commencement of the Act. But that transaction may be in renewal of a liability which arose prior to the commencement of the Act. Where such is the case it is difficult to exclude the applicability of S. 9 of the Act. As to how interest is to be calculated with respect to a debt incurred after October 1, 1932 the court cannot ignore the provisions of sub-s. (1) of S.doubt where the accounts have been settled between the parties and on the basis of settled accounts a new transaction is entered into between them, normally speaking, the court has no power to enquire further, except in the circumstances envisaged in some of the provisions of the Contract Act. But then there are special provisions like the Usurious Loans Act and the Act in question which clothe the courts with the requisite power. Here such a power is specifically given to the courts under Chapter II. Now, the proviso to sub-s- (1) of S.9 clearly states that any part of a prior debt which is found to be a renewal of a prior debt shall be deemed to be a debt contracted on the date on which such prior debt was incurred. Therefore, though a promissory note may have been executed after the commencement of the Act if it was in fact in renewal of a prior debt, it will have to be treated as if it was a debt incurred when the prior debt wasis true that sub-s.(1) of S.9 which provides for scaling down of debts incurred on or after October 1, 1932 does not use similar language. But it seems to us that the difference in language would not make any difference in the result because reading sub-s. (1) of S. 9 along with the provisions of .S. 7 it is abundantly clear that what the creditor would be entitled to obtain from the Court and what the Court will have to do would be to award interest only to the extent permissible by sub-s. (1) of S. 9 and this would in effect operate as a discharge of the rest of the liability for interest under the contract between the parties. Learned counsel further said that by applying the provisions of sub-sec. (1 ) of S. 9 to a debt renewed after the commencement of the Act would result in an anomaly in that with respect to renewals of certain old debts the entire liability for interest after October 1, 1932 will be wiped out whereas with regard to others the liability would exist to the extent of 5% per annum, simple interest in our judgment no anomaly results because the complete discharge of interest up to October 1, 1937, is provided for only with respect to debts first incurred prior to October 1, 1932 and this would be the position whatever be the date of renewal of such debts. This would be the consequence of the express terms of the proviso to sub-s. (1) of S. 9 which makes the provisions of S. 8 applicable to debts contracted prior to October 1, 1932 but renewed after October 1, 1932 but not to debts incurred subsequent to thatmade these provisions, there was nothing further that the legislature need have done in so far as transactions in renewal of debts contracted prior to the commencement of the Act were concerned. As to future interest, in so far as transactions prior to the commencement of the Act were concerned, the legislature has made a provision in S. 12 and in so far as transactions after the commencement of the Act are. concerned it has made a provision in S.13. Indeed, the object of the legislature in enacting S. 13 does not appear to be any other than to provide for the maximum rate of interest payable on debts incurred after the commencement of the Act and since it follows S. 12 it seems that just as the legislature divided debts into two categories it also divided rates of interest payable after the commencement of the Act into two categories. In S.12 it has prescribed the maximum rate of interest payable on debts scaled down under Ss. 8 and 9 and in S. 13 has provided for an identical maximum rate with respect to debts which could not be scaled down under Ss. 8 and 9 subject to the power of the State Government to alter it from time to time. There does not appear to be any other object such as creating a separate or independent category of debts while enacting S.13. Upon a plain construction of these provisions, therefore, we see no difficulty in upholding the ultimate decision of the High Court.The answer to the view of the High Court would be that in the first place every provision in the statute must be given effect to unless by doing as any conflict with any other provision of the Act would arise. In the second place we cannot ignore the object of the legislature in enacting this law which was to grant relief to the agriculturists and that any beneficial measure of this kind should, as far as permissible, be interpreted in such a way as to carry out the main object which the Legislature had in view. What we have said earlier in our judgment is in consonance with these principles and by interpreting Ss. 9 and 13 in the way we have done no violence will be done to the language of either of these provisions. The basis of the decision of the High Court appears to be that unless every transaction entered into after the commencement of the Act can be brought within the purview of S. 9, sub-s, (1) that provision could not apply to it at all whatever may be the date on which the original indebtedness arose. With respect, we do not see any reason for so construing the two provisions i.e., Ss. 9(1) and 13. In one judgment it is sufficient to say that full effect has to be given to both the provisions and they are to be construed harmoniously.Thus it would appear that wherever a transaction was entered into after the commencement of the Act but the original indebtedness arose before the commencement of the Act, the preponderant view is that Ss. 8 and 9 would not be inapplicable. That, as already stated, is also our view.Where a suit is instituted before a court of law for recovery of a debt from an agriculturist the court, having regard to the document on foot of which the creditor has instituted a suit was executed, finds that that document was executed before October 1, 1932 it will have to proceed to scale down the debt as provided in S. 8. If it finds that the debt was incurred after October 1, 1932 it will have to apply the provisions of S. 9 of the Act. It is these two broad categories into which debts have been divided under the Act. But,Mr. Bhimasankaram argued, there is also a third category and that is where a debt is incurred subsequent to the commencement of theIn one sense he is right because S. 13 also provides for the staling down of interest due on a debt incurred after the commencement of the Act. But it has to be borne in mind that a debt incurred after the commencement of the Act will not cease to be a debt incurred after October 1, 1932. It is common place that every provision of a statute has to be given full effect and wherever possible the Court should not place that construction upon a provision which would tend to make it redundant or to overlap another provision or to limit its application in disregard of its general applicability unless, of course, that is the only construction which could be reasonably placed upon it. If Mr. Bhimasankarams contention is accepted we will have to limit the application of S. 9 only to such of the debts incurred after October 1, 1932 as were incurred prior to the commencement of the Act. There is nothing in the language of the section which would justify so limiting its provisions. Nor again is there anything in S.13 which would preclude the application of S. 9 to any case whatsoever of a debt incurred after the commencement of the Act. For a debt may have been incurred after the commencement of the Act in the sense that the last transaction with respect to indebtedness may have been entered into, after the commencement of the Act. But that transaction may be in renewal of a liability which arose prior to the commencement of the Act. Where such is the case it is difficult to exclude the applicability of S. 9 of the Act. As to how interest is to be calculated with respect to a debt incurred after October 1, 1932 the court cannot ignore the provisions ofsubs. (1) of S.s, however, contended that where the last transaction was subsequent to the commencement of the Act the court has no power to go behind it and find out what interest has been charged by the creditor up to the date of the lastbt where the accounts have been settled between the parties and on the basis of settled accounts a new transaction is entered into between them, normally speaking, the court has no power to enquire further, except in the circumstances envisaged in some of the provisions of the Contract Act. But then there are special provisions like the Usurious Loans Act and the Act in question which clothe the courts with the requisite power. Here such a power is specifically given to the courts under Chapter II. Now, the proviso to(1) of S.9 clearly states that any part of a prior debt which is found to be a renewal of a prior debt shall be deemed to be a debt contracted on the date on which such prior debt was incurred. Therefore, though a promissory note may have been executed after the commencement of the Act if it was in fact in renewal of a prior debt, it will have to be treated as if it was a debt incurred when the prior debt wasincurred. This appears to be the true meaning of the proviso, though accordingto Mr. Bhimasankaram it deals with a debt originally incurred prior to October 1, 1932. In support of his contention Mr. Bhimsankaram relies upon the concluding portions of the proviso which read thus : ". . . . . . . . . .. and if such debt had been contracted prior to the 1st October 1932, shall be dealt with under the provisions of S.8." It is sufficient to say that the use of the conjunction and clearly shows that the proviso applies as much to debts contracted prior to October 1 st 1932 as to debts contracted after October 1, 1932 even though they may have been incurred after the commencement of the Act. If indeed it was the intention of the legislature to limit the application of the proviso in the manner suggested by Mr. Bhimasankaram it would have been easy for the legislature to say "provided that any debt or any part of a debt which is found to be the renewal of a debt contracted prior to 1st October, 1932" Instead of using the expression "prior debt" in that part of the proviso and then in the concluding portion say "if such debt has been contracted prior to 1st October, 1932". ThenMr. Bhimasankaram argued that the proviso is to subsection (1) of S. 9 and should, therefore, not be extended to embrace a debt renewed after the commencement of the Act.To accept this argument would give rise to this curious position that a debt renewed after the commencement of the Act would for the purposes of the Act not be a debt incurred after the October 1, 1932.We were also referred to the decision in Punvavatamma v. Satyanarayana, ILR (1960) 2 Andh Pra 11 ; Nagabhushanam v. Seetharamaiah, ILR (1961) 1 Andh Pra 485 : (AIR 1961 Andh Pra 224) (FB) and Chellammal v. Abdul Gaffoor Sahib, ILR (1961) Mad 1061 : (AIR 1962 Mad 1 ) ( FB). In the first and the third of these cases the original liability arose after the commencement of the Act but in second one it arose before the commencement of the Act. We agree with the view taken in the latter case that relief can be given to an agriculturist in such a case under S. 8 or S. 9 as the case may be. | 0 | 6,932 | 2,534 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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otiose. If that was the intention, the words interest outstanding would serve the purpose as well. The word all, therefore, cannot be ignored and must be given a meaning. It indicates that the entire interest, which a debt earned, is scaled down."19. The next decision referred to is that in Mansoor v. Sankarapandia, ILR (1959) Mad 57 : (AIR 1959 Mad 96 ) (FB). That was a decision of the Full Bench of the High Court and the points which arose for consideration and the decision of the Court are correctly summarised in the following head note:"Section 13 of the Madras Agriculturists Relief Act (IV of 1938) deals with debts incurred after the Act. Under that Section there is no provision for any automatic discharge of interest stipulated at a rate higher than that prescribed therein. Such excess interest is only made irrecoverable if the creditor sought to enforce it in a Court of law. There being neither a prohibition against a stipulation for payment for an automatic discharge of higher rates of interest agreed to be paid by an agriculturist debtor, it cannot be said that, when a creditor in regard to a debt contracted after the Act with the assent of his debtor added to the principal loan the interest accrued in terms of the contract and the debtor entered into a fresh contract treating the consolidated amount as principal for the fresh loan, there would be nothing illegal or even a failure of consideration in regard to the new loan. Such a new loan would constitute the debt incurred on the date of renewal and if a suit is based on that debt, the provisions of S.13 could be attracted to that debt alone and not to the earlier debt of which it was a renewal or substitution.The power to go behind a suit debt and to apply the provisions of the Act for the original liability is confined only to cases falling under Sections 8 and 9 of the Act. But even in cases coming under Section 13 it would be open to the defendants to plead and prove that the debt sued on could not form the basis of an action or that there was a failure of consideration in respect of it. Such a defence is not by virtue of anything in or peculiar to the Act, but one under the general law. In cases where a debt was contracted prior to the Act, but renewed after the Act by one or series of successive documents, such renewals including interest at the contract rate; which had been, statutorily discharged by reason of the provisions of Sections 8 and 9 of the Act, there would be a failure of consideration to the extent to which the interest was so discharged. This principle will or can have no application in the case of a debt incurred after the Act and renewed thereafter. In those cases there would be no failure of consideration, for no portion of interest has been discharged by Section 13, it being open to the debtor to agree to pay the higher stipulated rate of interest."That again was a case where the original indebtedness was subsequent to the commencement of the Act and, therefore, stands on a footing different from the one before us. The observations made by the court in the case upon which reliance is placed on behalf of the appellants appear to have been limited by the learned Judges to cases which fall under S. 13 alone. Since, however, the learned Judges seem to have accepted the view taken in Thiruvengadatha Ayyangars case, ILR (1942) Mad 57 : (AIR 1941 Mad 799 (2)) it is necessary for us to say that to that extent we do not concur in the view taken by them. It has to be remembered that where the plaintiff sues upon a document executed after the commencement of the Act the Court has to bear in mind also the provisions of S. 9 inasmuch as the document is one executed after October 1, 1932. If the pleadings show that the original indebtedness commenced before the coming into force of the Act the court will first have to deal with the document with reference to the provisions which precede S. 13 of the Act. It is not as if the Court has to shut its eyes to everything except the fact that the document sued upon was excited subsequent to the commencement of the Act. Therefore, if the court finds that the original indebtedness arose prior to the commencement of the Act either S. 8 or S. 9 will apply and it would not be relevant for it, to consider whether-by executing a renewal after the commencement of the Act the parties agreed to treat the interest accrued up to the date of renewal as principal from the date of the renewal of the debt. That consideration may be relevant in cases which completely exclude the applicability of Ss. 8 and 9.20. We were also referred to the decision in Punvavatamma v. Satyanarayana, ILR (1960) 2 Andh Pra 11 ; Nagabhushanam v. Seetharamaiah, ILR (1961) 1 Andh Pra 485 : (AIR 1961 Andh Pra 224) (FB) and Chellammal v. Abdul Gaffoor Sahib, ILR (1961) Mad 1061 : (AIR 1962 Mad 1 ) ( FB). In the first and the third of these cases the original liability arose after the commencement of the Act but in second one it arose before the commencement of the Act. We agree with the view taken in the latter case that relief can be given to an agriculturist in such a case under S. 8 or S. 9 as the case may be.21. Thus it would appear that wherever a transaction was entered into after the commencement of the Act but the original indebtedness arose before the commencement of the Act, the preponderant view is that Ss. 8 and 9 would not be inapplicable. That, as already stated, is also our view.
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it will have to proceed to scale down the debt as provided in S. 8. If it finds that the debt was incurred after October 1, 1932 it will have to apply the provisions of S. 9 of the Act. It is these two broad categories into which debts have been divided under the Act. But,Mr. Bhimasankaram argued, there is also a third category and that is where a debt is incurred subsequent to the commencement of theIn one sense he is right because S. 13 also provides for the staling down of interest due on a debt incurred after the commencement of the Act. But it has to be borne in mind that a debt incurred after the commencement of the Act will not cease to be a debt incurred after October 1, 1932. It is common place that every provision of a statute has to be given full effect and wherever possible the Court should not place that construction upon a provision which would tend to make it redundant or to overlap another provision or to limit its application in disregard of its general applicability unless, of course, that is the only construction which could be reasonably placed upon it. If Mr. Bhimasankarams contention is accepted we will have to limit the application of S. 9 only to such of the debts incurred after October 1, 1932 as were incurred prior to the commencement of the Act. There is nothing in the language of the section which would justify so limiting its provisions. Nor again is there anything in S.13 which would preclude the application of S. 9 to any case whatsoever of a debt incurred after the commencement of the Act. For a debt may have been incurred after the commencement of the Act in the sense that the last transaction with respect to indebtedness may have been entered into, after the commencement of the Act. But that transaction may be in renewal of a liability which arose prior to the commencement of the Act. Where such is the case it is difficult to exclude the applicability of S. 9 of the Act. As to how interest is to be calculated with respect to a debt incurred after October 1, 1932 the court cannot ignore the provisions ofsubs. (1) of S.s, however, contended that where the last transaction was subsequent to the commencement of the Act the court has no power to go behind it and find out what interest has been charged by the creditor up to the date of the lastbt where the accounts have been settled between the parties and on the basis of settled accounts a new transaction is entered into between them, normally speaking, the court has no power to enquire further, except in the circumstances envisaged in some of the provisions of the Contract Act. But then there are special provisions like the Usurious Loans Act and the Act in question which clothe the courts with the requisite power. Here such a power is specifically given to the courts under Chapter II. Now, the proviso to(1) of S.9 clearly states that any part of a prior debt which is found to be a renewal of a prior debt shall be deemed to be a debt contracted on the date on which such prior debt was incurred. Therefore, though a promissory note may have been executed after the commencement of the Act if it was in fact in renewal of a prior debt, it will have to be treated as if it was a debt incurred when the prior debt wasincurred. This appears to be the true meaning of the proviso, though accordingto Mr. Bhimasankaram it deals with a debt originally incurred prior to October 1, 1932. In support of his contention Mr. Bhimsankaram relies upon the concluding portions of the proviso which read thus : ". . . . . . . . . .. and if such debt had been contracted prior to the 1st October 1932, shall be dealt with under the provisions of S.8." It is sufficient to say that the use of the conjunction and clearly shows that the proviso applies as much to debts contracted prior to October 1 st 1932 as to debts contracted after October 1, 1932 even though they may have been incurred after the commencement of the Act. If indeed it was the intention of the legislature to limit the application of the proviso in the manner suggested by Mr. Bhimasankaram it would have been easy for the legislature to say "provided that any debt or any part of a debt which is found to be the renewal of a debt contracted prior to 1st October, 1932" Instead of using the expression "prior debt" in that part of the proviso and then in the concluding portion say "if such debt has been contracted prior to 1st October, 1932". ThenMr. Bhimasankaram argued that the proviso is to subsection (1) of S. 9 and should, therefore, not be extended to embrace a debt renewed after the commencement of the Act.To accept this argument would give rise to this curious position that a debt renewed after the commencement of the Act would for the purposes of the Act not be a debt incurred after the October 1, 1932.We were also referred to the decision in Punvavatamma v. Satyanarayana, ILR (1960) 2 Andh Pra 11 ; Nagabhushanam v. Seetharamaiah, ILR (1961) 1 Andh Pra 485 : (AIR 1961 Andh Pra 224) (FB) and Chellammal v. Abdul Gaffoor Sahib, ILR (1961) Mad 1061 : (AIR 1962 Mad 1 ) ( FB). In the first and the third of these cases the original liability arose after the commencement of the Act but in second one it arose before the commencement of the Act. We agree with the view taken in the latter case that relief can be given to an agriculturist in such a case under S. 8 or S. 9 as the case may be.
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M/S. Bharat Sugar Mills Ltd Vs. Shri Jai Singh And Others | in the go slow was not established. Without knowing full the circumstances under which those other 13 were taken back to work it is not proper to hold that there has been any discrimination against these 21.Learned for the respondents next contended that mala fide and victimisation were writ large on the conduct of the management in preventing the holding of a meeting for conciliation which was attempted by the Assistant Labour Commission. It is also urged that by this conduct the company provoked the workmen to resort to go slow. Even if it were found that the company had deliberately avoided the proposed meeting there would be no ground for saying that the workmen had been "provoked" to go slow. Inspite of the recommendation of the go slow committee and the resolution of Bihar Government "go slow" continued to be a misconduct under the Standing Orders and a mere refusal of the company to attend the conciliation meeting cannot be considered such provocation as would compel or justify the commission of misconduct. Nor can we find - even assuming for the present that the company did deliberately prevent the conciliation meeting before the 12th February -that this showed an intention to victimise. Before an industrial adjudication can find an employer guilty of an intention to victimise there must be reason to think that the employer was intending to punish workmen for their Union activities, while purporting to take action ostensibly for some other activity. It would be unreasonable to think that the appellant, expected that if the meeting was not held on the date as proposed the workmen were sure to start go slow and that that would give the management an opportunity of proceeding against the Union workers. It was not unreasonable for the management to expect better sense from workmen and to hope that they would not commit misconduct too readily. While we do not wish to say that no unfair conduct on the part of the management in negotiations over the workers threat to go slow would ever justify a finding of mala fides on the employer part, we must clearly say that the mere asking for adjournment of a conciliation meeting is not such conduct on which mala-fides or an intention to victimise can be reasonably based.Apart from this, we are not satisfied that in the present case the management was guilty of any deliberate attempt to delay the conciliation meeting. The reasons for asking an adjournment of the meeting were clearly mentioned in the several telegrams sent by the management to the Labour Commissioner and there is nothing on the record to justify a conclusion that these reasons were not true or honestly given.Our attention was drawn to the delay in holding the enquiry and the subsequent delay in filing the application for permission to dismiss. That there has been great and indeed unusual delay is clear. The charge-sheets were served on the workmen in March 1955 and the explanations were received about the middle of March, but the domestic enquiry took place in September 1955. Trying to explain this delay of several months, Sarda, the General Secretary, has stated thus :- "The enquiry into the charge sheets could not be commenced before the beginning of September, 1955, because of my continued ill health which necessitated complete rest for several weeks at a time and also because of my multifarious assignments which took me many a time to Patna and outside the State of Bihar. I could not assign the matter of holding the enquiries to other officers namely Chief Engineer or the Chief Chemist because they were themselves complainants against the workmen concerned. "We are unable to consider this explanation wholly satisfactory and are inclined to think that the management showed lamentable callousness in this matter of proceeding with the enquiry. In cases of this nature the enquiry should be held as early as possible, specially when the management takes the step of putting the workmen under suspension.No application for permission to dismiss was filed immediately. It was only in August 1956 that such an application was filed under section 22 of the Industrial Disputes Appellate Tribunal Act before the Labour Appellate Tribunal, Calcutta. But that was rendered infructuous on account of the disposal of the matter before the Labour Appellate Tribunal. The present application was made as late as December 30, 1956, after an application by the workman themselves under section 23 of the Industrial Disputes Appellate Tribunal Act had been withdrawn. We do not find any satisfactory explanation for the management delay in applying for permission to dismiss. At the same time, it is not possible to say that these delays show even remotely that in making the application for permission to dismiss the management was guilty of mala fides or an intention to victimise.We have therefore come to the conclusion that the Tribunal order in refusing permission to dismiss these workmen, viz., Harikishan Kuer, Baijnath Singh, Nagendranath Prasad, Baldeo, Dhannoo Mistry, Swarath Singh, Hardeo Singh, Kawalpati Bachan, Ramayan Singh, Jai Singh, Hira Sukul and Gulab Singh was entirely wrong and unjust and cannot be allowed to stand. As however even though no stay of the Tribunal order was granted when special leave was allowed by this Court and still the workmen concerned have not been allowed to work or paid their wages the permission should not be granted to dismiss them before the date of this judgment.As the two respondents Ramdeo and Golla are dead, there is no question of granting permission now to dismiss them, even though on the evidence on the record, the appellant might have been entitled to permission to dismiss these two with effect from this date, if they were living. These two will be entitled to wages till the date of their death.As regards the other respondents we are of opinion that the application was rightly refused inasmuch as the evidence adduced before the Industrial Tribunal does not establish the charge of misconduct against them. | 1[ds]Reports by some officers of the company were taken into consideration but it does not appear that the contents of these reports were read out and explained to the workmen. The persons whose reports were thus considered were present at the enquiry, but even so it does not appear that the workman was given an opportunity to examine them. Indeed, as none of these persons were actually examined in the presence of the workmen the question of their cross-examination by or on behalf of the workmen did not arise. The workman thus had not only no proper chance of knowing what was being alleged against him and by whom but also no chance of testing the correctness of the allegations that were in fact made in the written report.In view of these serious defects in the enquiry by the domestic tribunal it was not possible for the Industrial Tribunal to place any reliance on the findings of that domestic tribunal in order to decide whether permission to dismiss should be given under section 33 of the Industrial Disputeswas however adduced by the appellant before the Industrial Tribunal to make out its case that the workmen concerned were in fact guilty of the alleged misconduct. On behalf of the respondents it has been urged before us that once it is found that the enquiry by the domestic tribunal has been defective it was not open to the Industrial Tribunal before which the application under section 33 is made to allow any evidence to be adduced before it. We see no force in this contention. When an application for permission for dismissal is made on the allegation that the workman has been guilty of some misconduct for which the management considers dismissal the appropriate punishment the Tribunal has to satisfy itself that there is a prima facie case for such dismissal. Where there has been a proper enquiry by the management itself the Tribunal, it has been settled by a number of decisions of this Court, has to accept the findings arrived at in that enquiry unless it is perverse and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide. But the mere fact that no enquiry has been held or that the enquiry has not been properly conducted cannot absolve the Tribunal of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out. The proper way for performing this duty where there has not been a proper enquiry by the management is for the Tribunal to take evidence of both sides in respect of the alleged misconduct. When such evidence is adduced before the Tribunal the management is deprived of the benefit of having the findings of the domestic tribunal being accepted as prima facie proof of the alleged misconduct unless the finding is perverse and has to prove to the satisfaction of the Tribunal itself that the workman was guilty of the alleged misconduct. We do not think it either just to the management or indeed even fair to the workman himself that in such a case the Industrial Tribunal should refuse to take evidence and thereby drive the management to make a further application for permission after holding a proper enquiry and deprive the workman of the benefit of the Tribunal itself being satisfied on evidence adduced before it that he was guilty of the allegedIndustrial Tribunal held that all the evidence which might have been taken in the enquiry by the management had been led before it and it was in full possession of the facts and no question of any prejudice to the workmen arose as it would be open to it on a review of the entire evidence before it to decide whether the application for permission to dismiss should be granted or not. On a consideration of that evidence the Tribunal held as regards 16 of the workmen concerned that there was no evidence that they had taken part in the alleged misconduct of "go slow" or instigation to "go slow". No objection appears to have been taken either before the Appellate Tribunal or before this Court to the application being disposed of on the evidence taken before the Industrial Tribunal itself; and in fact this Court allowed the application under section 33 in respect of all the 48 workmen on the basis of the evidence given before the Industrialhave no hesitation in believing as correct these statements made by the Chief Engineer in his report made on February 13. There can be no doubt therefore that Swarath Singh, Hardeo Singh and Dhannoo actually participated in the go slow. As regards Harikishan Kuer, Baijnath, Ramdeo and Nagendranath and Baldeo we have to remember that it is not disputed that there was in fact a go slow in the different jobs on which these men were engaged. If they had not been proved to have taken an active part in promoting the go slow, there may have been some scope for saying that the go slow in their jobs was the consequence of the go slow at the Donga and not deliberate go slow on their part. When however we find that these persons were active in asking other workmen to go slow, they cannot be reasonably heard to say that the go slow in their own jobs was not deliberate on their part. The Tribunal was in our opinion clearly in error in thinking that the go slow in the jobs where these persons were engaged was merely the result of the go slow at the Donga end and not deliberate go slow on their part. In our opinion, the evidence of Ishawari Dayal definitely establishes that these several persons, Harikishan Kuer, Baijnath Singh, Ramdeo Singh, Nagendranath Prasad, Baldeo, Dhannoo Mistry, Sawarath Singh and Hardeo Singh did actually participate in delaying production.The Chief Chemist, A. N. Kapur, submitted to the Secretary one report on February 12, 1955 and two more reports on February 13. In the first report he said that having received information at about 9.30 A. M. that Gulab Singh, Evaporatorman, was inciting persons who were doing periodical cleaning of the Evaporators that day that day that they should do the cleaning slowly as if the "go-slow" had already started in their case, he immediately went to the Evaporators and questioned Gulab Singh about his alleged conduct and that Gulab Singh ultimately admitted that it was true but that he had merely been saying what others hadfor the respondents next contended that mala fide and victimisation were writ large on the conduct of the management in preventing the holding of a meeting for conciliation which was attempted by the Assistant Labour Commission. It is also urged that by this conduct the company provoked the workmen to resort to go slow. Even if it were found that the company had deliberately avoided the proposed meeting there would be no ground for saying that the workmen had been "provoked" to go slow. Inspite of the recommendation of the go slow committee and the resolution of Bihar Government "go slow" continued to be a misconduct under the Standing Orders and a mere refusal of the company to attend the conciliation meeting cannot be considered such provocation as would compel or justify the commission of misconduct. Nor can we find - even assuming for the present that the company did deliberately prevent the conciliation meeting before the 12th February -that this showed an intention to victimise. Before an industrial adjudication can find an employer guilty of an intention to victimise there must be reason to think that the employer was intending to punish workmen for their Union activities, while purporting to take action ostensibly for some other activity. It would be unreasonable to think that the appellant, expected that if the meeting was not held on the date as proposed the workmen were sure to start go slow and that that would give the management an opportunity of proceeding against the Union workers. It was not unreasonable for the management to expect better sense from workmen and to hope that they would not commit misconduct too readily. While we do not wish to say that no unfair conduct on the part of the management in negotiations over the workers threat to go slow would ever justify a finding of mala fides on the employer part, we must clearly say that the mere asking for adjournment of a conciliation meeting is not such conduct on which mala-fides or an intention to victimise can be reasonably based.Apart from this, we are not satisfied that in the present case the management was guilty of any deliberate attempt to delay the conciliation meeting. The reasons for asking an adjournment of the meeting were clearly mentioned in the several telegrams sent by the management to the Labour Commissioner and there is nothing on the record to justify a conclusion that these reasons were not true or honestlyapplication for permission to dismiss was filed immediately. It was only in August 1956 that such an application was filed under section 22 of the Industrial Disputes Appellate Tribunal Act before the Labour Appellate Tribunal, Calcutta. But that was rendered infructuous on account of the disposal of the matter before the Labour Appellate Tribunal. The present application was made as late as December 30, 1956, after an application by the workman themselves under section 23 of the Industrial Disputes Appellate Tribunal Act had been withdrawn. We do not find any satisfactory explanation for the management delay in applying for permission to dismiss. At the same time, it is not possible to say that these delays show even remotely that in making the application for permission to dismiss the management was guilty of mala fides or an intention to victimise.We have therefore come to the conclusion that the Tribunal order in refusing permission to dismiss these workmen, viz., Harikishan Kuer, Baijnath Singh, Nagendranath Prasad, Baldeo, Dhannoo Mistry, Swarath Singh, Hardeo Singh, Kawalpati Bachan, Ramayan Singh, Jai Singh, Hira Sukul and Gulab Singh was entirely wrong and unjust and cannot be allowed to stand. As however even though no stay of the Tribunal order was granted when special leave was allowed by this Court and still the workmen concerned have not been allowed to work or paid their wages the permission should not be granted to dismiss them before the date of this judgment.As the two respondents Ramdeo and Golla are dead, there is no question of granting permission now to dismiss them, even though on the evidence on the record, the appellant might have been entitled to permission to dismiss these two with effect from this date, if they were living. These two will be entitled to wages till the date of their death.As regards the other respondents we are of opinion that the application was rightly refused inasmuch as the evidence adduced before the Industrial Tribunal does not establish the charge of misconduct against them. | 1 | 5,737 | 1,956 | ### Instruction:
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in the go slow was not established. Without knowing full the circumstances under which those other 13 were taken back to work it is not proper to hold that there has been any discrimination against these 21.Learned for the respondents next contended that mala fide and victimisation were writ large on the conduct of the management in preventing the holding of a meeting for conciliation which was attempted by the Assistant Labour Commission. It is also urged that by this conduct the company provoked the workmen to resort to go slow. Even if it were found that the company had deliberately avoided the proposed meeting there would be no ground for saying that the workmen had been "provoked" to go slow. Inspite of the recommendation of the go slow committee and the resolution of Bihar Government "go slow" continued to be a misconduct under the Standing Orders and a mere refusal of the company to attend the conciliation meeting cannot be considered such provocation as would compel or justify the commission of misconduct. Nor can we find - even assuming for the present that the company did deliberately prevent the conciliation meeting before the 12th February -that this showed an intention to victimise. Before an industrial adjudication can find an employer guilty of an intention to victimise there must be reason to think that the employer was intending to punish workmen for their Union activities, while purporting to take action ostensibly for some other activity. It would be unreasonable to think that the appellant, expected that if the meeting was not held on the date as proposed the workmen were sure to start go slow and that that would give the management an opportunity of proceeding against the Union workers. It was not unreasonable for the management to expect better sense from workmen and to hope that they would not commit misconduct too readily. While we do not wish to say that no unfair conduct on the part of the management in negotiations over the workers threat to go slow would ever justify a finding of mala fides on the employer part, we must clearly say that the mere asking for adjournment of a conciliation meeting is not such conduct on which mala-fides or an intention to victimise can be reasonably based.Apart from this, we are not satisfied that in the present case the management was guilty of any deliberate attempt to delay the conciliation meeting. The reasons for asking an adjournment of the meeting were clearly mentioned in the several telegrams sent by the management to the Labour Commissioner and there is nothing on the record to justify a conclusion that these reasons were not true or honestly given.Our attention was drawn to the delay in holding the enquiry and the subsequent delay in filing the application for permission to dismiss. That there has been great and indeed unusual delay is clear. The charge-sheets were served on the workmen in March 1955 and the explanations were received about the middle of March, but the domestic enquiry took place in September 1955. Trying to explain this delay of several months, Sarda, the General Secretary, has stated thus :- "The enquiry into the charge sheets could not be commenced before the beginning of September, 1955, because of my continued ill health which necessitated complete rest for several weeks at a time and also because of my multifarious assignments which took me many a time to Patna and outside the State of Bihar. I could not assign the matter of holding the enquiries to other officers namely Chief Engineer or the Chief Chemist because they were themselves complainants against the workmen concerned. "We are unable to consider this explanation wholly satisfactory and are inclined to think that the management showed lamentable callousness in this matter of proceeding with the enquiry. In cases of this nature the enquiry should be held as early as possible, specially when the management takes the step of putting the workmen under suspension.No application for permission to dismiss was filed immediately. It was only in August 1956 that such an application was filed under section 22 of the Industrial Disputes Appellate Tribunal Act before the Labour Appellate Tribunal, Calcutta. But that was rendered infructuous on account of the disposal of the matter before the Labour Appellate Tribunal. The present application was made as late as December 30, 1956, after an application by the workman themselves under section 23 of the Industrial Disputes Appellate Tribunal Act had been withdrawn. We do not find any satisfactory explanation for the management delay in applying for permission to dismiss. At the same time, it is not possible to say that these delays show even remotely that in making the application for permission to dismiss the management was guilty of mala fides or an intention to victimise.We have therefore come to the conclusion that the Tribunal order in refusing permission to dismiss these workmen, viz., Harikishan Kuer, Baijnath Singh, Nagendranath Prasad, Baldeo, Dhannoo Mistry, Swarath Singh, Hardeo Singh, Kawalpati Bachan, Ramayan Singh, Jai Singh, Hira Sukul and Gulab Singh was entirely wrong and unjust and cannot be allowed to stand. As however even though no stay of the Tribunal order was granted when special leave was allowed by this Court and still the workmen concerned have not been allowed to work or paid their wages the permission should not be granted to dismiss them before the date of this judgment.As the two respondents Ramdeo and Golla are dead, there is no question of granting permission now to dismiss them, even though on the evidence on the record, the appellant might have been entitled to permission to dismiss these two with effect from this date, if they were living. These two will be entitled to wages till the date of their death.As regards the other respondents we are of opinion that the application was rightly refused inasmuch as the evidence adduced before the Industrial Tribunal does not establish the charge of misconduct against them.
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may have been some scope for saying that the go slow in their jobs was the consequence of the go slow at the Donga and not deliberate go slow on their part. When however we find that these persons were active in asking other workmen to go slow, they cannot be reasonably heard to say that the go slow in their own jobs was not deliberate on their part. The Tribunal was in our opinion clearly in error in thinking that the go slow in the jobs where these persons were engaged was merely the result of the go slow at the Donga end and not deliberate go slow on their part. In our opinion, the evidence of Ishawari Dayal definitely establishes that these several persons, Harikishan Kuer, Baijnath Singh, Ramdeo Singh, Nagendranath Prasad, Baldeo, Dhannoo Mistry, Sawarath Singh and Hardeo Singh did actually participate in delaying production.The Chief Chemist, A. N. Kapur, submitted to the Secretary one report on February 12, 1955 and two more reports on February 13. In the first report he said that having received information at about 9.30 A. M. that Gulab Singh, Evaporatorman, was inciting persons who were doing periodical cleaning of the Evaporators that day that day that they should do the cleaning slowly as if the "go-slow" had already started in their case, he immediately went to the Evaporators and questioned Gulab Singh about his alleged conduct and that Gulab Singh ultimately admitted that it was true but that he had merely been saying what others hadfor the respondents next contended that mala fide and victimisation were writ large on the conduct of the management in preventing the holding of a meeting for conciliation which was attempted by the Assistant Labour Commission. It is also urged that by this conduct the company provoked the workmen to resort to go slow. Even if it were found that the company had deliberately avoided the proposed meeting there would be no ground for saying that the workmen had been "provoked" to go slow. Inspite of the recommendation of the go slow committee and the resolution of Bihar Government "go slow" continued to be a misconduct under the Standing Orders and a mere refusal of the company to attend the conciliation meeting cannot be considered such provocation as would compel or justify the commission of misconduct. Nor can we find - even assuming for the present that the company did deliberately prevent the conciliation meeting before the 12th February -that this showed an intention to victimise. Before an industrial adjudication can find an employer guilty of an intention to victimise there must be reason to think that the employer was intending to punish workmen for their Union activities, while purporting to take action ostensibly for some other activity. It would be unreasonable to think that the appellant, expected that if the meeting was not held on the date as proposed the workmen were sure to start go slow and that that would give the management an opportunity of proceeding against the Union workers. It was not unreasonable for the management to expect better sense from workmen and to hope that they would not commit misconduct too readily. While we do not wish to say that no unfair conduct on the part of the management in negotiations over the workers threat to go slow would ever justify a finding of mala fides on the employer part, we must clearly say that the mere asking for adjournment of a conciliation meeting is not such conduct on which mala-fides or an intention to victimise can be reasonably based.Apart from this, we are not satisfied that in the present case the management was guilty of any deliberate attempt to delay the conciliation meeting. The reasons for asking an adjournment of the meeting were clearly mentioned in the several telegrams sent by the management to the Labour Commissioner and there is nothing on the record to justify a conclusion that these reasons were not true or honestlyapplication for permission to dismiss was filed immediately. It was only in August 1956 that such an application was filed under section 22 of the Industrial Disputes Appellate Tribunal Act before the Labour Appellate Tribunal, Calcutta. But that was rendered infructuous on account of the disposal of the matter before the Labour Appellate Tribunal. The present application was made as late as December 30, 1956, after an application by the workman themselves under section 23 of the Industrial Disputes Appellate Tribunal Act had been withdrawn. We do not find any satisfactory explanation for the management delay in applying for permission to dismiss. At the same time, it is not possible to say that these delays show even remotely that in making the application for permission to dismiss the management was guilty of mala fides or an intention to victimise.We have therefore come to the conclusion that the Tribunal order in refusing permission to dismiss these workmen, viz., Harikishan Kuer, Baijnath Singh, Nagendranath Prasad, Baldeo, Dhannoo Mistry, Swarath Singh, Hardeo Singh, Kawalpati Bachan, Ramayan Singh, Jai Singh, Hira Sukul and Gulab Singh was entirely wrong and unjust and cannot be allowed to stand. As however even though no stay of the Tribunal order was granted when special leave was allowed by this Court and still the workmen concerned have not been allowed to work or paid their wages the permission should not be granted to dismiss them before the date of this judgment.As the two respondents Ramdeo and Golla are dead, there is no question of granting permission now to dismiss them, even though on the evidence on the record, the appellant might have been entitled to permission to dismiss these two with effect from this date, if they were living. These two will be entitled to wages till the date of their death.As regards the other respondents we are of opinion that the application was rightly refused inasmuch as the evidence adduced before the Industrial Tribunal does not establish the charge of misconduct against them.
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THE COMMERCIAL TAX OFFICER AND ANR Vs. MOHAN BREWARIES AND DISTRILLERIES LIMITED | Cements Limited, the circular in question was not found to be in conflict with any statutory provision or the applicable schemes and, therefore, the same was held binding on the adjudicating authority in the following words: – 30. In the present case, it is not the case of the Revenue that the Circular dated 1-5-2000 is in conflict with either any statutory provision or the deferral schemes announced under the aforementioned government orders. We, therefore, hold that the said circular is binding in law on the adjudicating authority under the TNGST Act. 60. The aforesaid and other decisions, essentially dealing with exemption notifications, have no application to the present case; and in any event, none of the decisions, as referred on behalf of the assessee or as referred by the High Court, could be read for any principle contrary to that laid down by the Constitution Bench in Ratan Melting & Wire Industries (supra). 61. For what has been discussed hereinabove, we need not examine as to whether the Clarifications/Circulars in question could be said to be such clarification as envisaged by Section 28-A of the Act because even if the Clarifications/Circulars in question are treated to be those authorised by Section 28-A, they cannot have any effect over and above the interpretation of Section 7-A of the Act by the Courts. In other words, applicability of Section 7-A to the turnover in question could only be decided on the interpretation of the provision and its application to the given fact situation and not on the basis of Clarifications/Circulars in question. Put differently, the so-called Clarifications dated 09.11.1989 and 27.12.2000 had not been of explaining the meaning of any doubtful term or expression in the statutory provision nor they were explaining the object and purport of the provision concerned. The said Clarifications/Circulars had merely been the expression of the understanding of the concerned officer, be it SCCT or PCCT, about operation of Section 7-A of the Act vis-à-vis the purchase turnover of the empty bottles purchased by the assessee. However, such understanding of the officer concerned turns out to be a pure misunderstanding, when it stands at contradiction or incongruous to the declaration of law by the Courts; and could only be ignored. The latest Circular of the year 2002, issued after decision of the jurisdictional Tribunal in the case of Appollo Saline Pharmaceuticals (supra) could also be read only to the extent it is in conformity with the decision of the Tribunal (that came to be approved by the High Court) and in any case, even this circular cannot be decisive of the interpretation of Section 7-A of the Act. The decisive interpretation shall only be the one which is rendered in the binding decision/s of the Court. In continuity, we may also observe that various other decisions referred on behalf of the assessee, that modification of any particular circular or guideline or policy decision could only be made effective prospectively, have no application whatsoever to the present case. 62. In the aforesaid view of matter, we have no hesitation in concluding that the High Court, after having found that purchase tax was leviable on the turnover in question under Section 7-A of the Act, could not have issued directions for any benefit to the assessee with reference to the Clarifications/Circulars dated 09.11.1989 and 27.12.2000, particularly when such Clarifications/Circulars do not stand in conformity with the statutory provision and its interpretation by the Courts. 63. Hence, the impugned order of the High Court, on the second question as regards the operation and effect of Clarifications/Circulars dated 09.11.1989 and 27.12.2000, cannot be approved. 64. The net result of the discussion foregoing is that the purchase turnover of the empty bottles purchased by the assessee from the unregistered dealers under bought note is exigible to purchase tax under Section 7-A of the Tamil Nadu Act; and the assessee cannot escape such liability on the strength of the Clarifications/Circulars dated 09.11.1989 and 27.12.2000 which do not stand in conformity with the statutory provision as also declaration of law by the Courts. Other Question 65. So far as the other question regarding taxability of cash discount on the price offered by the assessee to the Tamil Nadu State Marketing Corporation Limited is concerned, the High Court has ruled in favour of the assessee with reference to the decision in the case of Neyvli Lignite Corporation Ltd. and the clear expressions in Explanation 2(iii) to Section 2(r) of the Act. 65.1. The relevant provision reads as under:- Section 2(r).- turnover means the aggregate amount for which goods are bought or sold, or delivered or supplied or otherwise disposed of in any of the ways referred to in clause (n), by a dealer either directly or through another, on his own account or on account of others whether for cash or for deferred payment or other valuable consideration, provided that the proceeds of the sale by a person of agricultural or horticultural produce, other than tea, and rubber (natural rubber, latex and all varieties and grades of raw rubber) grown within the State by himself or on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, shall be excluded from his turnover. *** *** *** Explanation (2) Subject to such conditions and restrictions, if any, as may be prescribed in this behalf- *** *** *** (iii) any cash or other discount on the price allowed in respect of any sale and any amount refunded in respect of articles returned by customers shall not be included in the turnover; *** *** *** 65.2. In view of the clear phraseology of the above extracted Explanation, not much of discussion appears requisite as regards this issue that has rightly been decided by the High Court in favour of the assessee and not much of serious contentions have been put forward by the revenue in this regard. The impugned order of the High Court, to this extent, calls for no interference. CONCLUSION | 1[ds]17.2. As noticed, Section 7-A was inserted in the Tamil Nadu Act with effect from 27.11.1969. This provision has undergone several amendments from time to time but, for the present purpose, its sub-section (1), as examined by this Court in the judgment dated 15.07.1975 in the case of M.K. Kandaswami (supra) and then, as applicable to the present case pertaining to the assessment year 1996-97, may be noticed.18. For dealing with the rival contentions, we may also take note of various facets of interpretation of Section 7-A (1) of the Act in the relevant cited decisions. It may, however, be observed that so far as the text of Section 7-A (1) applicable to the case at hand is concerned, there has not been any direct interpretation by this Court or the jurisdictional High Court (except the order impugned). In two of the cited decisions, one by this Court in the case of M.K. Kandaswami (supra) (Decided on 15.07.1975) and another by the High Court in the case of Associated Pharmaceutical Industries (supra) (Decided on 18.01.1984) , Section 7-A (1) of the Tamil Nadu Act, as existing before its amendment by Tamil Nadu Act No. 78 of 1986 w.e.f. 01.01.1987, came up for consideration. The other cited decision in relation to Section 7-A (1) of the Tamil Nadu Act had been by the jurisdictional High Court in the case of Appollo Saline Pharmaceuticals (supra) (Decided on 14.09.2001) but that was rendered after further amendments to Section 7-A including that by Tamil Nadu Act No. 60 of 1997 w.e.f. 06.11.1997. Thus, the specific phraseology of Section 7-A (1) of the Tamil Nadu Act as applicable to the present case has not been dealt with by any of these decisions. Nevertheless, each of these decisions had come under reference in this case at every stage and, having regard to the questions involved, appropriate it would be to take note of the relevant ratio decidendi from these decisions.19. As regards the decisions of jurisdictional High Court dealing with Section 7-A (1) of the Act, in the case of Associated Pharmaceutical Industries (supra), the assessee had purchased and used the bottles for manufacture and sale of medicines, drugs or syrups. It was held by the High Court that though without bottling, the drugs and syrups manufactured could not be sold but, that could not be a reason for holding that the process of manufacture of drugs and syrups was not complete unless they were bottled or put in suitable containers and hence, it cannot be said that the bottles had been used up in the process of manufacture; and consequently, the purchase turnover of empty bottles could not be brought to charge under Section 7-A (1) (a) of the Act.20. The other decision concerning the provision contained in Section 7-A (1) of the Act but after yet another amendment to clause (a) had been by the Madras High Court in the case of Appollo Saline Pharmaceuticals (supra). Therein, the assessee was engaged in manufacturing and marketing of I.V. fluid and the turnover of the bottles containing I.V. fluid was included in the turnover relating to the fluid by reason of Section 3 (7) of the Act. The assessee was confronted with a demand for payment of purchase tax for the reason that the bottles in which I.V. fluid was packed and sold were those bottles which the assessee had purchased from unregistered dealers and therefore, those bottles had not been subjected to tax at the time of purchase. It was essentially contended before the Madras High Court on behalf of the assessee that if the goods in respect of which purchase tax was sought to be levied continued to be available for sale or purchase and were in fact sold, such goods cannot be brought to tax under Section 7-A of the Act.20.1. The High Court referred to the expansion of ambit and coverage of Section 7-A (1) of the Act and observed that after the amendments, recovery of purchase tax was permissible even in cases where goods which had not suffered tax at the time of purchase and are subsequently disposed of by the dealer in circumstances where value of turnover relating to those goods is also subject to tax by deeming the same as forming part of turnover of other taxable goods. The High Court observed that the inclusion of turnover relating to bottles in the total turnover of dealer and thereby, such turnover relating to bottles being also subjected to tax, did not enable the assessee to get out of the net of Section 7-A because the bottles were not sold as bottles but were sold as part of a composite unit namely, I.V. fluid packed in bottles. The High Court also observed that the amended Section 7-A of the Act referred to the consumption or use of goods in or for the manufacture of other goods; and having regard to the nature of goods and the need for a container to make those goods marketable, it was required to be held that the bottles were used in or for the manufacture of I.V. fluid.20.2. The High Court also found that it was not the case of assessee that the fluids manufactured by it could be sold in the market without the aid of bottles. Thus, while reiterating that the bottling of I.V. fluid was necessary to make it marketable, the High Court held that the bottles were clearly the goods which were used in or for the manufacture of fluid.21. Turning over to the cited decisions of this Court, it may be observed that the 3-Judge Bench decision of this Court in the case of M.K. Kandaswami (supra) has a material bearing and is of utmost significance because the root purpose as also the sweep of this provision for levy of purchase tax have been succinctly explained by this Court while illuminating several of its basic and essential ingredients.21.1. In the case of M. K. Kandaswami (supra), the respondent dealers had purchased a variety of goods, namely, arecanuts, gingelly seeds, turmeric, grams, castor seeds and butter in such circumstances where their sales were not liable to tax in the hands of the respective sellers although the goods were such, whose sale or purchase was generally liable to tax under the Act. Against the respondent dealers, either pre-assessment proceedings had been initiated or assessments had been made under Section 7-A of the Act on the purchase turnover of these goods on the assertions by revenue that the gingelly seeds and castor seeds were crushed into oil and the butter was converted into ghee by the respective dealers and by such action, the goods in question were consumed in the manufacture of other goods for sale; and hence, this action was covered under clause (a) of Section 7-A (1). It was also asserted that the other goods namely, arecanuts, turmeric and gram, were transported by the respective dealers outside the State for sale on consignment basis and thereby, those cases were covered by clause (b) or clause (c) of Section 7-A (1). In the backdrop of these facts, when Section 7-A came up for interpretation in the writ petitions under Article 226 of the Constitution of India, the High Court found the phraseology of Section 7-A to be rather carrying contradiction in terms and the language being far from clear as to its intention.27. Keeping the aforementioned principles in view and having regard to the questions of construction involved in the present case, it appears appropriate to recapitulate the texts of the relevant provisions concerning purchase tax as occurring in different State enactments which have come in reference in the present case; and for proper appreciation, it would be useful to put the relevant texts in juxtaposition to notice their similarities and akin features as also the dissimilarities and distinctive features.28. As noticed, so far as the text of Section 7-A (1) applicable to the case at hand is concerned, there has not been any direct interpretation by this Court or the jurisdictional High Court (except the order impugned). We may also usefully reiterate that so far decision of Madras High Court in the case of Associated Pharmaceuticals Industries (supra) is concerned, the same was rendered before the relevant amendments to Section 7-A of the Act and particularly when the expression or uses was not there in clause (a) of Section 7-A (1). Only the expression consumes was considered therein and the High Court held that the bottles were not consumed in manufacture of drugs or syrups. So far the decision of Madras High Court in the case of Appollo Saline Pharmaceuticals (supra) is concerned, as noticed, the same was rendered after further amendment to Section 7-A whereby, the expression or for was added to clause (a), which expression was not there in the provision applicable to the present case. This apart, the activity examined in the case of Appollo Saline Pharmaceuticals had been of the sale of I.V. fluid packed in bottles.29.1. It needs hardly any re-emphasis that the scope and ambit of the provisions of purchase tax in different State enactments had been different on material particulars; and it is apparent that for difference in phraseology, interpretation of one particular State Sales Tax Act cannot be ipso facto imported for interpreting another enactment. Learned senior counsel for the assessee has endeavoured to persuade us that the observations made in Hotel Balaji (supra) in relation to Haryana Act may apply to the present case too but, we are afraid, the submissions cannot be accepted because of a fundamental difference in the ambit and scope of the Haryana Act compared to the ambit and scope of Tamil Nadu Act with which we are concerned in these appeals. We may, therefore move on to the other decisions of this Court for the purpose of interpretation of Section 7-A of the Act and for finding out the principles to be applied to the present case.30. As noticed, the 3-Judge Bench decision of this Court in the case of M. K. Kandaswami (supra) was rendered in relation to the provision of Section 7-A of the Tamil Nadu Act, as existing at the relevant time. The later amendment of this provision (w.e.f. 01.01.1987), with which we are concerned in this case, has only enlarged its width by insertion of the expression or uses after the expression consumes and thereby, not only consumption but even use in the manner envisaged by the provision would provide coverage thereunder. Therefore, when the later amendment has not altered the basics of Section 7-A of the Act and had only enlarged its scope, the principles applicable to the present case could be culled out from the enunciation in M. K. Kandaswami, with necessary variation, rather enlargement.31. As held in M. K. Kandaswami (supra), Section 7-A of the Act is a charging as well as a remedial provision, its main object being to plug leakage and prevent evasion of tax; and in interpreting such a provision, a construction which would defeat its purpose or render it otiose should be eschewed. As regards workability of Section 7-A of the Act, this Court catalogued its ingredients in a point-wise break up and pointed out that it would apply only if all such ingredients are cumulatively satisfied. We have extracted the analysis so made by this Court hereinbefore (Vide paragraph 19.2. ibid.) . The same analysis shall apply to the provision of Section 7-A with which we are concerned in the present case with necessary variation and with major difference that in point No. 6(a), the expression or uses shall also get added because of the amendment above- noted. Therefore, applying the analysis in M.K. Kandaswami with necessary modification, Section 7-A (1), as existing in the statute during the period relevant for the present case, would become applicable if the following basic ingredients are cumulatively satisfied: -(1) The person who purchases the goods is a dealer and is covered under Section 3(1) of the Act;(2) the purchase is made by him in the course of his business;(3) such purchase is either from a registered dealer or from any other person;(4) the goods purchased are those goods whose sale or purchase is liable to tax under the Act;(5) such purchase is in circumstances in which no tax is payable under Section 3 or 4, as the case may be (but not being the excepted circumstance with reference to the point of purchase); and(6) the dealer either-(a) consumes or uses such goods in the manufacture of other goods for sale or otherwise, or(b) disposes of such goods in any manner other than by way of sale in the State, or(c) despatches or carries them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce.32. The analysis as above fairly gives insight as to the ambit and scope of Section 7-A (1) of the Act but it is the expression or otherwise, as occurring in clause (a) of this provision [point No. 6(a) ibid.] that, perforce, calls for yet deeper exploration to understand the range of coverage of this provision. However, this exploration does not require any lengthy discussion for the directly applicable dictum of the Constitution Bench in the case of Nandanam Construction Co. (supra).33. As noticed, the relevant clauses in Section 6-A of the Andhra Pradesh Act had been more or less similar to those contained in Section 7-A of the Tamil Nadu Act and while construing the same in Nandanam Construction Co. (supra), the Constitution Bench specifically held that the object of the said provision was to levy purchase tax on goods consumed either for the purpose of manufacture of other goods for sale or consumed otherwise. (vide paragraph 23.3.3 ibid) Be it noted that the additional expression or uses was not there in the said Section 6-A of the Andhra Pradesh Act either. In other words, the phraseology examined by the Constitution Bench in Nandanam Construction Co. was akin to that of Section 7-A of the Tamil Nadu Act as existing earlier and as examined in M.K. Kandaswami. Further, noticeably, in M.K. Kandaswami, the 3-Judge Bench held that the decision in Ganesh Prasad Dixit, wherein the provision contained in Section 7 of the Madhya Pradesh Act had been interpreted by this Court, was apposite guide for construing Section 7-A of the Tamil Nadu Act; and then, in Nandanam Construction Co., the Constitution Bench approved the enunciation in Ganesh Prasad Dixit as regards the interpretation of the expression or otherwise while making it absolutely clear that this expression or otherwise provided alternative to the expression manufacture and not to the expression sale; and the converse interpretation as regards this expression or otherwise in Pio Food Packers was overruled. The provision in Section 7 of the Madhya Pradesh Act had also been similar to the original Section 7-A of the Tamil Nadu Act.33.1. As noticed, by the amendment with effect from 01.01.1987, the scope of Section 7-A (1) has only been enlarged with addition of the expression or uses. Looking to the expressions of Section 7-A (1) of the Tamil Nadu Act, as existing earlier and as existing after the amendment, we are clearly of the view that the enunciation by the Constitution Bench in Nandanam Construction Co., read with the approved interpretation in Ganesh Prasad Dixit, would equally apply to the amended provision with necessary modulation after its expansion.34. When the principles laid down by the Constitution Bench in Nandanam Construction Co. coupled with the approved interpretation in Ganesh Prasad Dixit are read with the analysis in M.K. Kandaswami and are applied to the amended Section 7-A of the Tamil Nadu Act with which we are concerned in this case, the end-product of synthesis is that the expression or otherwise qualifies, and provides alternative to, the action of manufacture; and therefore, consumption of the goods in question for manufacture or otherwise as also use of the goods in question for manufacture or otherwise are the acts/actions covered under clause ( a ) of sub-section (1) of Section 7-A of the Tamil Nadu Act.34.1. In other words, when we apply the principles laid down by the Constitution Bench in Nandanam Construction Co. to the phraseology of clause (a) of sub-section (1) of Section 7-A of the Tamil Nadu Act, four eventualities are covered thereunder, with reference to the treatment of the goods in question (which had been purchased by the dealer in the circumstances where sales tax had not been paid at the time of their purchase), viz.,(i) when they are consumed in manufacture of other goods for sale; or(ii) when they are consumed otherwise; or(iii) when they are used in manufacture of other goods for sale; or(iv) when they are used otherwise.Application of the relevant principles to the case at hand35. Put in a nutshell, with the discussion foregoing, we have found that for applicability of Section 7-A (1) of the Act, as existing in the statute during the period relevant for the present case, basic ingredients (compiled in paragraph 31 hereinbefore) ought to be cumulatively satisfied; and for coverage of any case under clause (a) of sub-section (1) of Section 7-A of the Act, one or more of the eventualities envisaged therein (catalogued in paragraph 34.1. hereinabove) ought to exist. Having thus deduced the necessary ingredients/elements and relevant principles, we may now embark upon the enquiry as to whether purchase tax under Section 7-A of the Act is leviable over the turnover in question.36. As noticed, for the purpose of its business of manufacture and sale of Beer and IMFL, the assessee had purchased empty bottles from unregistered dealers situated outside the State as well as from non-dealers for the bottling of Beer and IMFL. The assessee would assert that purchase tax on the turnover in question is not leviable for the reason the said empty bottles were recycled after use by the consumers and were re-filled with Beer/IMFL; and that the said bottles had not been consumed or used in the manufacture of liquor and they were only used as containers in which already manufactured liquor was bottled for carrying and sale. The counter stand of revenue is that use of the said bottles is imperative in the manufacture of Beer/IMFL and packaging of Beer/IMFL in glass bottles has to be seen as an inseparable composite unit; and therefore, purchase tax on the turnover of purchase of such empty bottles is leviable, for being covered by Section 7-A (1) (a) of the Act.37. Taking up the first limb of submissions with reference to the activity in question, when we examine the ingredients for applicability of Section 7-A (1) of the Act, it is not in dispute that: (1) the assessee, who has purchased the goods in question (the empty bottles), is a dealer and is covered under Section 3 (1) of the Act; (2) the said purchase has been made by the assessee in the course of its business; (3) such purchase has been from unregistered dealers situated outside the State as well as from non-dealers; (4) sale or purchase of the goods purchased (the empty bottles) is liable to tax under the Act; and (5) such purchase has been in circumstances in which no tax is payable under Section 3 or 4 and has not been in any excepted circumstance with reference to the point of purchase. These indisputable features unfailingly lead to the position that ingredients (1) to (5) of Section 7-A (1) of the Act, as mentioned in paragraph 31 hereinbefore, are satisfied.37.1. However, as noticed, for applicability of Section 7-A (1) of the Act, all the six ingredients need to be cumulatively satisfied. The ingredient (6) has three alternatives viz., the dealer has either (a) consumed or used the goods in question in the manufacture of other goods for sale or otherwise, or (b) has disposed of such goods in any manner other than by way of sale in the State, or (c) has despatched or carried them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce. It is not in dispute that clauses (b) or (c) of this ingredient are not attracted in this case, for the entire manufactured Beer/IMFL, after bottling, having been sold by the assessee only to the Tamil Nadu State Marketing Corporation Limited (TASMAC) within the State of Tamil Nadu.As already noticed, as per the language used, this provision comes in operation when the dealer consumes or uses such goods in the manufacture of other goods for sale or otherwise. Hence, the activity in question would be so covered if any one of the four elements of clause (a) exists, i.e., (i) if the goods in question are consumed in manufacture of other goods for sale; or (ii) if they are consumed otherwise; or (iii) if they are used in manufacture of other goods for sale; or (iv) if they are used otherwise.39.4.2. We need not enter deeply into the nitty-gritty of semantics but this much is clear that with the said later amendment and modification of prepositions to in or for, coverage is provided in the provision not only to the activity of use of the particular goods in the manufacture but also to the activity when the particular goods are merely used for the manufacture. However, as noticed, this amendment with insertion of the expressions or for is not applicable to the present case. Therefore, for the present purpose, it shall have to be examined if the goods in question (empty bottles) have either been consumed or been used as an integral part of the activity of manufacture of other goods for sale.40. As noticed, several of the meanings of the expressions consume and consumption denote using up a particular thing in a way that results in complete exhaustion of that thing. On the other hand, the expression use denotes the application or deployment of a particular thing as a means of achieving something or for accomplishment of a purpose. Undoubtedly, the word use is of wider import than consumption (vide Kathiawar Industries Ltd. (supra)) .42. We need not multiply on the citations as the fundamental principles remain clear that, on the question as to whether manufacture has taken place or not, the relevant enquiry would be to find if a new substance has come into existence which is a different commercial commodity or whereby identity of the original commodity has ceased to exist.The decision of this Court in the case of Mohan Meakin Breweries Ltd. (supra) is sufficient to be noticed in this regard wherein it was clearly held that bottling takes place after brewing of Beer is complete. This Court said as under :-. What has been observed in relation to brewing and bottling of Beer would equally apply to distillation and bottling of IMFL.44. Applying the relevant tests concerning the expressions consumes, uses and in the manufacture to the present case, it remains hardly a matter of doubt that so far the empty bottles are concerned, even after being filled with liquor, they remain bottles only, retaining their original elements including shape, size and character. They are not consumed at all; and there arise no question of they being consumed in the manufacture. Therefore, we have no hesitation in accepting the submissions of assessee that the bottles in question have not been consumed in manufacture of other goods for sale.44.1. In continuity with the above, we are also inclined to accept the submission of the assessee that the empty bottles have not even been used in manufacture. This is for the reason that for operation and application of the phrase uses in manufacture, it has to be shown that the bottles in question have been deployed as a means of achieving the purpose of manufacture. As noticed, the phrase manufacture of other goods for sale, in the present case, refers to the goods manufactured by the assessee, i.e., Beer/IMFL; and, in fact, use of the bottles in question comes up in the activity of the assessee only after manufacture of liquor (Beer/IMFL) has already been accomplished by brewing or distillation. Needless to reiterate that in relation to the activity of assessee, the action of bottling is a separate process and is undertaken only after the process of manufacture by way of brewing or distillation is complete. Thus understood, we are clearly of the view that the goods in question (empty bottles) cannot be said to have been used in manufacture.45. For what has been discussed hereinabove, we have no hesitation in concluding that the bottles in question have neither been consumed in manufacture of Beer/IMFL nor they could be said to have been used in such manufacture of Beer/IMFL. Hence, elements (i) and (iii) pertaining to clause (a) of sub-section (1) of Section 7-A of the Act do not exist in this case.This area of examination takes us to the words or otherwise used in clause (a) of sub-section (1) of Section 7-A of the Act. In this regard, we need again to look at etymology related with the expression in question.47. The variety of meanings assigned to the expression otherwise makes one aspect absolutely clear that this expression is intended to denote something different than the thing/s to which it is employed; and that this expression is essentially general in nature. In the phraseology of clause (a) of sub-section (1) of Section 7-A of the Act, the words or otherwise have been placed after the particular words consumes, uses and manufacture. Obviously, these words or otherwise are intended to convey that not only the activities envisaged by the particular words preceding but, even the other activities would also be covered thereunder.48. The aforesaid general principles are also not decisive of the matter because when an expression generally of wide amplitude like otherwise is used, the question still arises about its construction, particularly when it is placed after particular/specific words. In this process of construction, one may feel inclined to rely upon and apply the rule of ejusdem generis whereby and whereunder when a particular word pertaining to a class, category or genus are followed by general words, the general words are construed as limited to the things of the same kind as those specified. Even as regards the words or otherwise, in some of the interpretations, they have been treated as limited in their scope with reference to the context (Like in the cases of S. Prakasha Rao and Anr v. Commissioner of Commercial Taxes and Ors.: (1990) 2 SCC 259 and George Da Costa v. Controller of Estate Duty Mysore : AIR 1967 SC 849 ) but the Constitution Bench of this Court in the case of Smt. Lila Vati Bai v. State of Bombay: AIR 1957 SC 521 , while construing the words or otherwise occurring in Explanation (a) to Section 6 of the Bombay Land Requisition Act, held that these words were intended to cover all possible cases of vacancy occurring due to any reason whatsoever. The Constitution Bench observed that far from using these words ejusdem generis with the preceding clauses, the Legislature had used them in an all-inclusive sense; and, in the given context and looking to the object and the mischief sought to be dealt with by the enactment, there was no room for application of the rule of ejusdem generis.48.2. The principles enunciated in the aforesaid cases make it clear that even the rule of ejusdem generis cannot be picked up and applied as an abstract proposition whenever general words are used after particular words and expressions. As regards the words or otherwise, though, ordinarily, the class or category to be covered thereby may have to be kindred to the particular class or category preceding them but, such kinship could be even of general relatedness to the particular words and need not be that of cognates or agnates or analogues.48.3. In our view, looking to the context as also the object of the provision in question, as regards the words or otherwise, the rule of ejusdem generis would apply in a very limited sense and only to the extent that the class or category to be covered thereunder may not be dissimilar or incongruent to the particular class or category of the expressions preceding it. As already noticed, in the case of Nandanam Construction Co. (supra), the Constitution Bench has construed these words or otherwise in relation to the pari materia provisions of the Andhra Pradesh Act and held that the expression otherwise qualifies the word manufacture and, therefore, consumption of the goods in question, even if not in manufacture, would lead to coverage for levy of purchase tax. We may usefully reiterate that in Nandanam Construction Co. (supra), the assessee was engaged in the business of building houses/flats and had consumed the goods like bricks and sand in such construction. The Constitution Bench found that such consumption was clearly a consumption otherwise than manufacture but was covered under the provisions for levy of purchase tax. The Constitution Bench also stated the reason for such construction that the goods in question were consumed and ceased to exist in their original form so as to be sold in that original form.49. Keeping the principle aforesaid in view, we may now take up elements (ii) and (iv) of clause (a) of sub-section (1) of Section 7-A of the Act.49.1. As already noticed, consumption requires the thing in question being exhausted or ceasing to exist for being used up. The bottles in question, even when used as containers of the liquor manufactured by the assessee, had neither been exhausted nor had ceased to exist; they have rather continued to exist while retaining their basic identity and character as bottles. Of course, they (empty bottles) had been filled up with liquor but such filling up has not resulted in the bottles themselves being used up. Hence, the activity in question does not fall within the ambit of element (ii). However, the very same logic does not apply to element (iv) because it cannot be said that the bottles in question have not been used otherwise.49.2. As noticed, the expression use is of wide amplitude and it refers to the usage or engagement of an article for the accomplishment of a purpose irrespective of whether the article itself undergoes a visible change or not. The fact that the bottles in question have indeed been used by the assessee in its overall activity of manufacture and sale of liquor is clear from the fact that the manufacture of liquor by the process of brewing or distillation did not conclude the activity of the assessee. Undoubtedly, for the sale of such manufactured liquor to TASMAC, the assessee was required to put the same into the bottles; and the sale by assessee could have taken place only after such bottling of the liquor. The assessee has, indisputably, undertaken this process of bottling by the use of the goods in question, i.e., the empty bottles purchased from unregistered dealers. Hence, it is but apparent that the goods in question (empty bottles) have been used by the assessee, and for that matter, have been used for an activity closely connected and co-related with the main activity of manufacture of liquor as also as necessary ingredient of the end-purpose of sale of liquor. Significantly, after such use for bottling, the goods in question (empty bottles) did not remain available for sale in the form in which they were purchased by the assessee.49.3. In other words, the process of bottling with the use of bottles in question has been an unalienable part of the complete chain of processes that the assessee was obliged to undertake for its business, i.e., manufacturing and selling the liquor. By this process, the bottles in question were used by the assessee in such a manner that they were no longer available for sale in the form they were purchased from unregistered dealers. That being the position, the bottles in question have indeed been used otherwise by the assessee. The assessee cannot avoid operation of the words or otherwise so far use of the bottles is concerned by merely establishing that they have not been consumed in manufacture or otherwise and further that they have not been used in manufacture. Even when these three elements viz., consumed in manufacture; consumed otherwise; and used in manufacture do not exist as regards the bottles in question in the business activity of the assessee, it is but apparent the activity of the assessee clearly entails the use of bottles for the purpose of bottling and sale of liquor manufactured by it. This activity clearly takes the bottles in question within the fourth element i.e., used otherwise.49.4. Hence, though the bottles in question have not been consumed otherwise, they have indeed been used otherwise; and therefore, the activity of assessee in relation to the bottles in question is clearly covered by element (iv) of clause (a) of sub-section (1) of Section 7-A of the Act.50. To summarise the discussion aforesaid and to put our views in a nutshell, the goods in question (empty bottles) have not been consumed in the manufacture of other goods for sale nor they have been consumed otherwise because of having retained their identity. They have also not been used in the manufacture of other goods for sale because manufacture of Beer/IMFL was complete without their use. However, they have been used for bottling and when bottling remains an integral part of the business activity of the assessee, i.e., of manufacturing the liquor by the process of brewing/distillation and then, selling the manufactured liquor by putting the same in bottles, they have been used otherwise. That being the position, use of the goods in question for bottling takes the turnover of their purchase within the net of Section 7-A of the Act.50.1. To put it more simply, if we read clause (a) of sub-section (1) of Section 7-A of the Act sliced down to the elements uses in manufacture or otherwise, it is clear that the goods in question (empty bottles) have been used for bottling, which use, even if not for manufacture, had been a use otherwise which has been closely connected with the business of the assessee and whereby the bottles in question did not remain available for sale in the form in which they were purchased. This is the plain and clear operation of the dictum of Constitution Bench in the case of Nandanam Construction Co. (supra). Hence, applicability of Section 7-A of the Act is complete and remains beyond the realm of doubt.51. Having thus arrived at the conclusion that ingredients (1) to (5) and (6)(a) for applicability of Section 7-A (1) are cumulatively satisfied, the inescapable result is that the turnover in question is exigible to purchase tax. However, there remains another limb of submissions on the part of assessee that when the bottles have not been disposed of in any manner other than by way of sale in the State and had been disposed of only by way of sale to TASMAC within the State of Tamil Nadu itself; and they had been subjected to sales tax at the same rate as that of the contents, purchase tax would not be leviable. This line of submissions on the part of assessee, in our view, remains entirely baseless.52. As already noticed, the goods in question (empty bottles) have been used to complete the process of making the manufactured goods (Beer/IMFL) marketable. It is also clear that the bottles have not been sold by the assessee simply as bottles. They have been sold as an essential component of the marketable commodity. That being the position, charging of sales tax on these bottles comes into operation by virtue of Section 3 (1) read with Section 3 (7) of the Tamil Nadu Act. As noticed, the assessee is indisputably a dealer covered under sub-section (1) of Section 3 of the Act. By virtue of sub-section (7) of Section 3, when the assessee has sold the goods (Beer/IMFL) together with the bottles as containers or packing material, turnover of Beer/IMFL was bound to include the price, cost or value of such bottles whether such price, cost or value had been charged separately or not; and sales tax was bound to be levied thereupon at the rate applicable to the goods contained, i.e., Beer/IMFL. The Explanation to Section 3 of the Act puts it beyond doubt that the expression containers includes bottles.52.1 Another relevant feature of the provisions in question is that applicability of Section 7-A of the Act has not been made dependent on the event of levy of sales tax on the goods for which purchase tax is to be levied. As noticed, levy of purchase tax is dependent on cumulative existence of the necessary ingredients of Section 7-A of the Act; and no exception or exclusion is provided with reference to the factum of levy of sales tax on the goods in question at the time of their sale. In fact, not much of elaborate discussion in this regard appears requisite, for a direct answer being available in a 3-Judge Bench decision of this Court in the case of Premier Breweries (supra) wherein, pari materia provisions of the Kerala Act as regards levy of sales tax were considered. In the said case of Premier Breweries, the appellant had sold liquor packed in cardboard cartons. It was contended that such cardboard cartons had already borne tax under the entry paper other than the newsprint cardboard and their products and hence, such cartons could not have been taxed again when sold along with Beer. This Court examined sub-sections (5) and (6) of Section 5 of the Kerala Act, which had been more or less akin to sub-sections (7) and (8) of Section 3 of the Tamil Nadu Act, and negatived the contention of the dealer. The relevant paragraphs of the said decision, taking note of sub-sections (5) and (6) of Section 5 of the Kerala Act and rejecting this part of the contentions of assessee, could be usefully noticed as follows (at pp.602 and 607-608 of STC):-5. Before examining the decisions, it will be useful to refer to the relevant provisions of the Kerala General Sales Tax Act. Tax on sale or purchase of goods has been imposed by section 5 of the Act. Sub-sections (5) and (6) of section 5 of the Act provide:5. (5) Notwithstanding anything contained in sub-section (1) or sub-section (2), but subject to sub-section (6), where goods sold are contained in containers or are packed in any packing materials, the rate of tax and the point of levy applicable to the containers or packing materials, as the case may be, shall, whether the price of the containers or packing materials is charged separately or not, be the same as those applicable to goods contained or packed, and in determining turnover of the goods, the turnover in respect of the containers or packing materials shall be included therein.(6) Where the sale or purchase of goods contained in any containers or packed in any packing materials is exempt from tax, then the sale or purchase of such containers or packing materials shall also be exempt from tax.*** *** ***22. We shall now deal with another point urged on behalf of the appellant. It has been contended that the cardboard cartons have already borne tax under the entry paper, other than the newsprint, cardboard and their products in the First Schedule of the Act. It is a single-point tax. The cardboard cartons cannot be taxed once again when sold along with the beer.23. There are two answers to this contention. Sub-section (5) of section 5 specifically provides that the rate of tax and point of levy applicable to the containers shall be the same as those applicable to the goods sold. Therefore, even if the cartons have already been subjected to tax by virtue of specific provision of section 5(5) they will be liable to tax at the same point and at the same rate as the goods contained therein.24. Moreover, the packing materials as such are not being taxed under sub-section (5) of section 5 of the Act. The subject-matter of tax are the goods packed in the containers. In calculating the turnover of the goods, packing materials will have to be taken into account. The packing materials will be taxed at the same rate and at the same point as the goods contained in the packing material. This is because the goods are sold packed in containers and are charged accordingly. This is a rule of computation of the turnover of the goods. If no tax is ultimately found leviable on the goods then no tax can be levied on the containers in which the goods are contained.52.2 As already noticed, this question was also examined by the High Court in the case of Appollo Saline Pharmaceuticals (supra) although the said decision was rendered in relation to the bottles used for packing of I.V. fluid and the provision examined therein was that as existing after amendment of clause (a) of sub-section (1) of Section 7-A with insertion of the words or for but, such amendment is of no effect so far as this limb of contentions is concerned. In the said decision, the High Court repelled such a contention against levy of purchase tax on bottles because of the bottles being subjected to sales tax when being sold with I.V. fluid while observing that such sales tax was nevertheless leviable even in relation to the bottles which were purchased from a registered dealer after payment of sales tax. The relevant portion in paragraph 11 of the said decision of the High Court in Appollo Saline Pharmaceuticals (extracted in paragraph 20.2 hereinbefore) obviously conforms to the ratio of Premier Breweries (supra), which, in our view, is a direct and complete answer to the contention of the assessee. As noticed, in the entire scheme of Section 7-A of the Act, nowhere any exception is provided that if a particular commodity or goods would be subjected to sales tax in the event of their sale, they may not be liable to purchase tax. On the contrary, as rightly observed by the High Court, even if the bottles had been purchased after payment of sales tax, the turnover of such purchase was nevertheless required to be included in the total turnover at the time of sale of the contents with the containers.52.3 In other words, the fact that the bottles in question were subjected to sales tax at the same rate as applicable to their contents is entirely irrelevant and has no bearing on the exigibility of the turnover in question to purchase tax. In this regard, we may also observe that even though the provision relating to the purchase tax was initially inserted to plug the loss of revenue in relation to the goods that were consumed in manufacture or were consumed otherwise, its scope and amplitude has been widened with insertion of the expression or uses and thereby, not only consumption but even use in manufacture or use otherwise of the goods has been made subject to the levy of purchase tax. We need not expand more on these aspects of the matter. Suffice it to observe for the present purpose that merely because the bottles in question were to be subjected to sales tax, when being sold as containers of the liquor, liability of purchase tax cannot be obviated.52.4. To put it differently, it is apparent that so far as sales tax on the bottles in question at the time of their sale is concerned, the same is leviable by virtue of Section 3 (7) of the Act and there is nothing in Section 7-A to even suggest that levy of sales tax at the time of sale of the goods in question would exclude them from the net of purchase tax. That being the position, the second limb of submissions on the part of assessee turns out to be hollow and baseless, and cannot be accepted.53. Therefore, the final result of the discussion aforesaid is that purchase tax under Section 7-A of the Act is leviable on the purchase turnover of empty bottles purchased by the assessee in the course of its business of manufacture and sale of Beer and IMFL.OPERATION AND EFFECT OF DEPARTMENTS CLARIFICATIONS/CIRCULARS54. As noticed, the High Court in its impugned order dated 10.09.2004 did reach to the conclusion that purchase tax was leviable on the purchase turnover of the empty bottles but found the assessee entitled to the benefit of Clarifications/Circulars issued by the revenue on 09.11.1989 and 27.12.2000. The revenue has questioned this part of the order of the High Court on the grounds and contentions as noticed hereinabove. In order to examine the rival contentions in this regard and the correctness of proposition adopted by the High Court, we may take note of the statutory provision in the Tamil Nadu Act on the power of the Commissioner of Commercial Taxes to issue clarification as also the particular Clarifications/Circulars relevant to the present case.56. As noticed, in support of its conclusion that the revenue cannot refuse the benefit of Clarifications dated 09.11.1989 and 27.12.2000 to the assessee, the High Court has relied upon various decisions including that of the Constitution Bench of this Court in the case of Dhiren Chemical Industries (supra).57. Having regard to the reasoning of High Court and the contentions of rival parties as also for dealing with the operation and effect of the Clarifications/Circulars aforesaid, we need to imbibe the principles enunciated in the binding decisions of this Court, particularly the dictum in two Constitution Bench decisions in Dhiren Chemical Industries (Rendered on 12.12.2001) and Ratan Melting & Wire Industries (Rendered on 14.10.2008) .57.1. In Dhiren Chemical Industries (supra), the questions referred to the Constitution Bench were relating to the interpretation of the phrase on which the appropriate amount of duty of excise has already been paid ; and operation of the exemption notification issued by the Central Government, exempting iron or steel products made out of fresh unused re-rollable scrap if appropriate amount of duty had already been paid. In the context of such questions and the exemption notification calling for interpretation, though the Constitution Bench placed the interpretation in favour of the revenue but also observed as follows (at p. 125 of STC):. The aforesaid observations in Dhiren Chemical Industries led to certain misunderstanding as regards operation and effect of the circulars and as to whether effect can be given to the circular of the Government in preference to the binding precedents of High Court and of this Court. This led to the other reference to the Constitution Bench and the issue came to be resolved in the case of Ratan Melting & Wire Industries (supra).57.3. In Ratan Melting & Wire Industries (supra), the Constitution Bench referred to the above-quoted observations in Dhiren Chemical Industries and also noted that those observations had been explained in another decision in the case of Kalyani Packaging Industries v. Union of India: (2004) 6 SCC 719 . The Constitution Bench observed and noted as follows:-3. …… In Kalyani Packaging Industry v. Union of India it was noted as follows: (SCC p. 721, para 6)6. We have noticed that para 11 of Dhiren Chemical case is being misunderstood. It, therefore, becomes necessary to clarify para 11 of Dhiren Chemical case. One of us (Variava, J.) was a party to the judgment of Dhiren Chemical case and knows what was the intention in incorporating para 11. It must be remembered that law laid down by this Court is law of the land. The law so laid down is binding on all courts/tribunals and bodies. It is clear that circulars of the Board cannot prevail over the law laid down by this Court. However, it was pointed out that during hearing of Dhiren Chemical case because of the circulars of the Board in many cases the Department had granted benefits of exemption notifications. It was submitted that on the interpretation now given by this Court in Dhiren Chemical case the Revenue was likely to reopen cases. Thus para 11 was incorporated to ensure that in cases where benefits of exemption notification had already been granted, the Revenue would remain bound. The purpose was to see that such cases were not reopened. However, this did not mean that even in cases where the Revenue/Department had already contended that the benefit of an exemption notification was not available, and the matter was sub judice before a court or a tribunal, the court or tribunal would also give effect to circulars of the Board in preference to a decision of the Constitution Bench of this Court. Where as a result of dispute the matter is sub judice, a court/tribunal is, after Dhiren Chemical case, bound to interpret as set out in that judgment. To hold otherwise and to interpret in the manner suggested would mean that courts/tribunals have to ignore a judgment of this Court and follow circulars of the Board. That was not what was meant by para 11 of Dhiren Chemical case.57.4. Taking note of the above and clarifying the law on the subject, the Constitution Bench of this Court in Ratan Melting & Wire Industries (supra) laid down the principles in no uncertain terms as follows :7. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular provision of statute says and it is not for the executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law.(emphasis in bold supplied)58. In view of the aforesaid pronouncement by the Constitution Bench of this Court in Ratan Melting & Wire Industries (supra), there remains hardly any doubt on the principles that Clarifications/Circulars/Instructions issued by the competent authority are binding on the authorities under the respective statutes but so far as declaration of law in regard to any particular statutory provision is concerned, the view expressed in the binding decision of this Court or the High Court is to be given effect to; and no direction can be issued to enforce a clarification or circular contrary to the declaration of law by the Courts.59. In view of the above, the decisions relied upon by the learned senior counsel for the assessee do not require much dilation. However, we may refer to a few representative decisions as infra.60. The aforesaid and other decisions, essentially dealing with exemption notifications, have no application to the present case; and in any event, none of the decisions, as referred on behalf of the assessee or as referred by the High Court, could be read for any principle contrary to that laid down by the Constitution Bench in Ratan Melting & Wire Industries (supra).61. For what has been discussed hereinabove, we need not examine as to whether the Clarifications/Circulars in question could be said to be such clarification as envisaged by Section 28-A of the Act because even if the Clarifications/Circulars in question are treated to be those authorised by Section 28-A, they cannot have any effect over and above the interpretation of Section 7-A of the Act by the Courts. In other words, applicability of Section 7-A to the turnover in question could only be decided on the interpretation of the provision and its application to the given fact situation and not on the basis of Clarifications/Circulars in question. Put differently, the so-called Clarifications dated 09.11.1989 and 27.12.2000 had not been of explaining the meaning of any doubtful term or expression in the statutory provision nor they were explaining the object and purport of the provision concerned. The said Clarifications/Circulars had merely been the expression of the understanding of the concerned officer, be it SCCT or PCCT, about operation of Section 7-A of the Act vis-à-vis the purchase turnover of the empty bottles purchased by the assessee. However, such understanding of the officer concerned turns out to be a pure misunderstanding, when it stands at contradiction or incongruous to the declaration of law by the Courts; and could only be ignored. The latest Circular of the year 2002, issued after decision of the jurisdictional Tribunal in the case of Appollo Saline Pharmaceuticals (supra) could also be read only to the extent it is in conformity with the decision of the Tribunal (that came to be approved by the High Court) and in any case, even this circular cannot be decisive of the interpretation of Section 7-A of the Act. The decisive interpretation shall only be the one which is rendered in the binding decision/s of the Court. In continuity, we may also observe that various other decisions referred on behalf of the assessee, that modification of any particular circular or guideline or policy decision could only be made effective prospectively, have no application whatsoever to the present case.62. In the aforesaid view of matter, we have no hesitation in concluding that the High Court, after having found that purchase tax was leviable on the turnover in question under Section 7-A of the Act, could not have issued directions for any benefit to the assessee with reference to the Clarifications/Circulars dated 09.11.1989 and 27.12.2000, particularly when such Clarifications/Circulars do not stand in conformity with the statutory provision and its interpretation by the Courts.63. Hence, the impugned order of the High Court, on the second question as regards the operation and effect of Clarifications/Circulars dated 09.11.1989 and 27.12.2000, cannot be approved.64. The net result of the discussion foregoing is that the purchase turnover of the empty bottles purchased by the assessee from the unregistered dealers under bought note is exigible to purchase tax under Section 7-A of the Tamil Nadu Act; and the assessee cannot escape such liability on the strength of the Clarifications/Circulars dated 09.11.1989 and 27.12.2000 which do not stand in conformity with the statutory provision as also declaration of law by the Courts.65. So far as the other question regarding taxability of cash discount on the price offered by the assessee to the Tamil Nadu State Marketing Corporation Limited is concerned, the High Court has ruled in favour of the assessee with reference to the decision in the case of Neyvli Lignite Corporation Ltd. and the clear expressions in Explanation 2(iii) to Section 2(r) of the Act.65.2. In view of the clear phraseology of the above extracted Explanation, not much of discussion appears requisite as regards this issue that has rightly been decided by the High Court in favour of the assessee and not much of serious contentions have been put forward by the revenue in this regard. The impugned order of the High Court, to this extent, calls for no interference. | 1 | 33,632 | 10,364 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
Cements Limited, the circular in question was not found to be in conflict with any statutory provision or the applicable schemes and, therefore, the same was held binding on the adjudicating authority in the following words: – 30. In the present case, it is not the case of the Revenue that the Circular dated 1-5-2000 is in conflict with either any statutory provision or the deferral schemes announced under the aforementioned government orders. We, therefore, hold that the said circular is binding in law on the adjudicating authority under the TNGST Act. 60. The aforesaid and other decisions, essentially dealing with exemption notifications, have no application to the present case; and in any event, none of the decisions, as referred on behalf of the assessee or as referred by the High Court, could be read for any principle contrary to that laid down by the Constitution Bench in Ratan Melting & Wire Industries (supra). 61. For what has been discussed hereinabove, we need not examine as to whether the Clarifications/Circulars in question could be said to be such clarification as envisaged by Section 28-A of the Act because even if the Clarifications/Circulars in question are treated to be those authorised by Section 28-A, they cannot have any effect over and above the interpretation of Section 7-A of the Act by the Courts. In other words, applicability of Section 7-A to the turnover in question could only be decided on the interpretation of the provision and its application to the given fact situation and not on the basis of Clarifications/Circulars in question. Put differently, the so-called Clarifications dated 09.11.1989 and 27.12.2000 had not been of explaining the meaning of any doubtful term or expression in the statutory provision nor they were explaining the object and purport of the provision concerned. The said Clarifications/Circulars had merely been the expression of the understanding of the concerned officer, be it SCCT or PCCT, about operation of Section 7-A of the Act vis-à-vis the purchase turnover of the empty bottles purchased by the assessee. However, such understanding of the officer concerned turns out to be a pure misunderstanding, when it stands at contradiction or incongruous to the declaration of law by the Courts; and could only be ignored. The latest Circular of the year 2002, issued after decision of the jurisdictional Tribunal in the case of Appollo Saline Pharmaceuticals (supra) could also be read only to the extent it is in conformity with the decision of the Tribunal (that came to be approved by the High Court) and in any case, even this circular cannot be decisive of the interpretation of Section 7-A of the Act. The decisive interpretation shall only be the one which is rendered in the binding decision/s of the Court. In continuity, we may also observe that various other decisions referred on behalf of the assessee, that modification of any particular circular or guideline or policy decision could only be made effective prospectively, have no application whatsoever to the present case. 62. In the aforesaid view of matter, we have no hesitation in concluding that the High Court, after having found that purchase tax was leviable on the turnover in question under Section 7-A of the Act, could not have issued directions for any benefit to the assessee with reference to the Clarifications/Circulars dated 09.11.1989 and 27.12.2000, particularly when such Clarifications/Circulars do not stand in conformity with the statutory provision and its interpretation by the Courts. 63. Hence, the impugned order of the High Court, on the second question as regards the operation and effect of Clarifications/Circulars dated 09.11.1989 and 27.12.2000, cannot be approved. 64. The net result of the discussion foregoing is that the purchase turnover of the empty bottles purchased by the assessee from the unregistered dealers under bought note is exigible to purchase tax under Section 7-A of the Tamil Nadu Act; and the assessee cannot escape such liability on the strength of the Clarifications/Circulars dated 09.11.1989 and 27.12.2000 which do not stand in conformity with the statutory provision as also declaration of law by the Courts. Other Question 65. So far as the other question regarding taxability of cash discount on the price offered by the assessee to the Tamil Nadu State Marketing Corporation Limited is concerned, the High Court has ruled in favour of the assessee with reference to the decision in the case of Neyvli Lignite Corporation Ltd. and the clear expressions in Explanation 2(iii) to Section 2(r) of the Act. 65.1. The relevant provision reads as under:- Section 2(r).- turnover means the aggregate amount for which goods are bought or sold, or delivered or supplied or otherwise disposed of in any of the ways referred to in clause (n), by a dealer either directly or through another, on his own account or on account of others whether for cash or for deferred payment or other valuable consideration, provided that the proceeds of the sale by a person of agricultural or horticultural produce, other than tea, and rubber (natural rubber, latex and all varieties and grades of raw rubber) grown within the State by himself or on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, shall be excluded from his turnover. *** *** *** Explanation (2) Subject to such conditions and restrictions, if any, as may be prescribed in this behalf- *** *** *** (iii) any cash or other discount on the price allowed in respect of any sale and any amount refunded in respect of articles returned by customers shall not be included in the turnover; *** *** *** 65.2. In view of the clear phraseology of the above extracted Explanation, not much of discussion appears requisite as regards this issue that has rightly been decided by the High Court in favour of the assessee and not much of serious contentions have been put forward by the revenue in this regard. The impugned order of the High Court, to this extent, calls for no interference. CONCLUSION
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in no uncertain terms as follows :7. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular provision of statute says and it is not for the executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law.(emphasis in bold supplied)58. In view of the aforesaid pronouncement by the Constitution Bench of this Court in Ratan Melting & Wire Industries (supra), there remains hardly any doubt on the principles that Clarifications/Circulars/Instructions issued by the competent authority are binding on the authorities under the respective statutes but so far as declaration of law in regard to any particular statutory provision is concerned, the view expressed in the binding decision of this Court or the High Court is to be given effect to; and no direction can be issued to enforce a clarification or circular contrary to the declaration of law by the Courts.59. In view of the above, the decisions relied upon by the learned senior counsel for the assessee do not require much dilation. However, we may refer to a few representative decisions as infra.60. The aforesaid and other decisions, essentially dealing with exemption notifications, have no application to the present case; and in any event, none of the decisions, as referred on behalf of the assessee or as referred by the High Court, could be read for any principle contrary to that laid down by the Constitution Bench in Ratan Melting & Wire Industries (supra).61. For what has been discussed hereinabove, we need not examine as to whether the Clarifications/Circulars in question could be said to be such clarification as envisaged by Section 28-A of the Act because even if the Clarifications/Circulars in question are treated to be those authorised by Section 28-A, they cannot have any effect over and above the interpretation of Section 7-A of the Act by the Courts. In other words, applicability of Section 7-A to the turnover in question could only be decided on the interpretation of the provision and its application to the given fact situation and not on the basis of Clarifications/Circulars in question. Put differently, the so-called Clarifications dated 09.11.1989 and 27.12.2000 had not been of explaining the meaning of any doubtful term or expression in the statutory provision nor they were explaining the object and purport of the provision concerned. The said Clarifications/Circulars had merely been the expression of the understanding of the concerned officer, be it SCCT or PCCT, about operation of Section 7-A of the Act vis-à-vis the purchase turnover of the empty bottles purchased by the assessee. However, such understanding of the officer concerned turns out to be a pure misunderstanding, when it stands at contradiction or incongruous to the declaration of law by the Courts; and could only be ignored. The latest Circular of the year 2002, issued after decision of the jurisdictional Tribunal in the case of Appollo Saline Pharmaceuticals (supra) could also be read only to the extent it is in conformity with the decision of the Tribunal (that came to be approved by the High Court) and in any case, even this circular cannot be decisive of the interpretation of Section 7-A of the Act. The decisive interpretation shall only be the one which is rendered in the binding decision/s of the Court. In continuity, we may also observe that various other decisions referred on behalf of the assessee, that modification of any particular circular or guideline or policy decision could only be made effective prospectively, have no application whatsoever to the present case.62. In the aforesaid view of matter, we have no hesitation in concluding that the High Court, after having found that purchase tax was leviable on the turnover in question under Section 7-A of the Act, could not have issued directions for any benefit to the assessee with reference to the Clarifications/Circulars dated 09.11.1989 and 27.12.2000, particularly when such Clarifications/Circulars do not stand in conformity with the statutory provision and its interpretation by the Courts.63. Hence, the impugned order of the High Court, on the second question as regards the operation and effect of Clarifications/Circulars dated 09.11.1989 and 27.12.2000, cannot be approved.64. The net result of the discussion foregoing is that the purchase turnover of the empty bottles purchased by the assessee from the unregistered dealers under bought note is exigible to purchase tax under Section 7-A of the Tamil Nadu Act; and the assessee cannot escape such liability on the strength of the Clarifications/Circulars dated 09.11.1989 and 27.12.2000 which do not stand in conformity with the statutory provision as also declaration of law by the Courts.65. So far as the other question regarding taxability of cash discount on the price offered by the assessee to the Tamil Nadu State Marketing Corporation Limited is concerned, the High Court has ruled in favour of the assessee with reference to the decision in the case of Neyvli Lignite Corporation Ltd. and the clear expressions in Explanation 2(iii) to Section 2(r) of the Act.65.2. In view of the clear phraseology of the above extracted Explanation, not much of discussion appears requisite as regards this issue that has rightly been decided by the High Court in favour of the assessee and not much of serious contentions have been put forward by the revenue in this regard. The impugned order of the High Court, to this extent, calls for no interference.
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Union of India (UOI) and Ors Vs. Raj Kumar Anand and Ors | (where applicable) which is higher than the stage in the revised pay band at which the pay of a government servant who was drawing pay at the next higher stage or stages in the same existing scale is fixed, the pay of the latter shall also be stepped up only to the extent by which it falls short of that of the former. (iii) the pay in the pay band will be determined in the above manner. In addition to the pay in the pay band, grade pay corresponding to the existing scale will be payable. ........................ Note 2A- Where a post has been upgraded as a result of the recommendations of the Sixth Code of Civil Procedure as indicated in part B or Part C of the First Schedule to these Rules, the fixation of pay in the applicable pay band will be done in the manner prescribed in accordance with Clause (A) (i) and (ii) of Rule 7 by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ten. The grade pay corresponding to the upgraded scale as indicated in Column 6 of Part B or C will be payable in addition. Illustration 4A in this regard is in the Explanatory Memorandum to these rules. Rule 11. Fixation of pay in the revised pay structure subsequent to the 1st day of January, 2006 - Where a government servant continues to draw his pay in the existing scale and is brought over to the revised pay structure from a date later than the 1st day of January 2006, his pay from the later date in the revised pay structure shall be fixed in the following manner: (i) Pay in the pay band will be fixed by adding the basic pay applicable on the later date, the dearness pay applicable on that date and the pre-revised dearness allowance based on rates applicable as on 1.1.2006. This figure will be rounded off to the next multiple of 10 and will then become the pay in the applicable pay band. In addition to this, the grade pay corresponding to the pre-revised pay scale will be payable....... 10. It is apparent from the first proviso to Rule 5 of Rules of 2008, that option was given to the government servant to continue to draw the pay scale until the date on which his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that pay scale. 11. Second proviso to Rule 5 which is attracted also made it clear that where the government servant has been placed in a higher pay scale between 1.1.2006 and the date of notification of these Rules on account of promotion, upgradation of pay scale etc., the government servant may elect to switch over to the revised pay structure from the date of such promotion, upgradation etc. 12. It is not in dispute that the ACP was granted to the Respondent between 01.01.2006 and 29.8.2008 i.e., the date of notification of Rules 2008. It was granted w.e.f. 10.8.2006 vide order dated 25.4.2008. Thus, the benefit of upgraded pay scale was given to the Respondent in between the aforesaid dates. 13. Once he has elected for revised pay scale w.e.f. 10.8.2006, the date on which he was placed in the upgraded pay scale, obviously, Rule 7 cannot be said to be applicable. It is Rule 11 which is applicable. 14. Rule 7 deals with the fixation of initial pay in the revised pay structure as per the 6th Central Pay Commission. Note 2A to Rule 7 relied upon by the Appellants makes it vivid that where a pay scale has been upgraded on the recommendation of Central Pay Commission as indicated in para B and C of the first Schedule of the Rules of 2008, the fixation has to be made Under Rule 7. However, it was not the case of upgradation of the post as a result of the recommendation of the 6th Pay Commission and Schedule of Rules of 2008, but it was under ACP scheme which is a different scheme than the one as provided in the first Schedule to the Rules 2008. The Respondent has opted for revision of pay scale from the date of upgradation in the ACP scale w.e.f. 10.08.2006. Obviously, his pay has to be fixed Under Rule 11 which deals with fixation of the pay in the revised pay scale in case such an option is exercised under the Rules of 2008. The Division Bench of the High Court was absolutely correct in applying Rule 11 as Note 2A of Rule 7 is not applicable in the case. 15. Coming to the decision rendered by this Court in K.V. Rama Raju and Ors. (supra), it does not appear from the facts that it was a case of exercising option from the date of upgradation under ACP that came for consideration before this Court. It is not clear whether it was a case of upgradation as a result of the recommendation of the 6th Pay Commission or independent thereto. In both the cases consequences are different. In the earlier exigency Rule 7 is attracted and in the later one Rule 11 of Rules of 2008 is attracted for fixation of pay. Thus, the decision cannot be an authority on the aforesaid issue which has not been decided. Apart from that, it was not the case of Appellants that upgraded pay scale has been brought about by 6th Pay Commission as per provisions contained in Schedule of the Rules 2008 as provided in Note 2A of Rule 7. Thus, the decision in K.V. Rama Raju and Ors. (supra) is wholly distinguishable and cannot be applied to such cases where upgradation has been made otherwise than as per Schedule to Rules of 2008 framed as per recommendations of 6th Pay Commission and option is exercised in the aforesaid manner. | 0[ds]12. It is not in dispute that the ACP was granted to the Respondent between 01.01.2006 and 29.8.2008 i.e., the date of notification of Rules 2008. It was granted w.e.f. 10.8.2006 vide order dated 25.4.2008. Thus, the benefit of upgraded pay scale was given to the Respondent in between the aforesaid dates13. Once he has elected for revised pay scale w.e.f. 10.8.2006, the date on which he was placed in the upgraded pay scale, obviously, Rule 7 cannot be said to be applicable. It is Rule 11 which is applicable14. Rule 7 deals with the fixation of initial pay in the revised pay structure as per the 6th Central Pay Commission. Note 2A to Rule 7 relied upon by the Appellants makes it vivid that where a pay scale has been upgraded on the recommendation of Central Pay Commission as indicated in para B and C of the first Schedule of the Rules of 2008, the fixation has to be made Under Rule 7. However, it was not the case of upgradation of the post as a result of the recommendation of the 6th Pay Commission and Schedule of Rules of 2008, but it was under ACP scheme which is a different scheme than the one as provided in the first Schedule to the Rules 2008. The Respondent has opted for revision of pay scale from the date of upgradation in the ACP scale w.e.f. 10.08.2006. Obviously, his pay has to be fixed Under Rule 11 which deals with fixation of the pay in the revised pay scale in case such an option is exercised under the Rules of 2008. The Division Bench of the High Court was absolutely correct in applying Rule 11 as Note 2A of Rule 7 is not applicable in the case15. Coming to the decision rendered by this Court in K.V. Rama Raju and Ors. (supra), it does not appear from the facts that it was a case of exercising option from the date of upgradation under ACP that came for consideration before this Court. It is not clear whether it was a case of upgradation as a result of the recommendation of the 6th Pay Commission or independent thereto. In both the cases consequences are different. In the earlier exigency Rule 7 is attracted and in the later one Rule 11 of Rules of 2008 is attracted for fixation of pay. Thus, the decision cannot be an authority on the aforesaid issue which has not been decided. Apart from that, it was not the case of Appellants that upgraded pay scale has been brought about by 6th Pay Commission as per provisions contained in Schedule of the Rules 2008 as provided in Note 2A of Rule 7. Thus, the decision in K.V. Rama Raju and Ors. (supra) is wholly distinguishable and cannot be applied to such cases where upgradation has been made otherwise than as per Schedule to Rules of 2008 framed as per recommendations of 6th Pay Commission and option is exercised in the aforesaid manner. | 0 | 2,647 | 553 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
(where applicable) which is higher than the stage in the revised pay band at which the pay of a government servant who was drawing pay at the next higher stage or stages in the same existing scale is fixed, the pay of the latter shall also be stepped up only to the extent by which it falls short of that of the former. (iii) the pay in the pay band will be determined in the above manner. In addition to the pay in the pay band, grade pay corresponding to the existing scale will be payable. ........................ Note 2A- Where a post has been upgraded as a result of the recommendations of the Sixth Code of Civil Procedure as indicated in part B or Part C of the First Schedule to these Rules, the fixation of pay in the applicable pay band will be done in the manner prescribed in accordance with Clause (A) (i) and (ii) of Rule 7 by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ten. The grade pay corresponding to the upgraded scale as indicated in Column 6 of Part B or C will be payable in addition. Illustration 4A in this regard is in the Explanatory Memorandum to these rules. Rule 11. Fixation of pay in the revised pay structure subsequent to the 1st day of January, 2006 - Where a government servant continues to draw his pay in the existing scale and is brought over to the revised pay structure from a date later than the 1st day of January 2006, his pay from the later date in the revised pay structure shall be fixed in the following manner: (i) Pay in the pay band will be fixed by adding the basic pay applicable on the later date, the dearness pay applicable on that date and the pre-revised dearness allowance based on rates applicable as on 1.1.2006. This figure will be rounded off to the next multiple of 10 and will then become the pay in the applicable pay band. In addition to this, the grade pay corresponding to the pre-revised pay scale will be payable....... 10. It is apparent from the first proviso to Rule 5 of Rules of 2008, that option was given to the government servant to continue to draw the pay scale until the date on which his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that pay scale. 11. Second proviso to Rule 5 which is attracted also made it clear that where the government servant has been placed in a higher pay scale between 1.1.2006 and the date of notification of these Rules on account of promotion, upgradation of pay scale etc., the government servant may elect to switch over to the revised pay structure from the date of such promotion, upgradation etc. 12. It is not in dispute that the ACP was granted to the Respondent between 01.01.2006 and 29.8.2008 i.e., the date of notification of Rules 2008. It was granted w.e.f. 10.8.2006 vide order dated 25.4.2008. Thus, the benefit of upgraded pay scale was given to the Respondent in between the aforesaid dates. 13. Once he has elected for revised pay scale w.e.f. 10.8.2006, the date on which he was placed in the upgraded pay scale, obviously, Rule 7 cannot be said to be applicable. It is Rule 11 which is applicable. 14. Rule 7 deals with the fixation of initial pay in the revised pay structure as per the 6th Central Pay Commission. Note 2A to Rule 7 relied upon by the Appellants makes it vivid that where a pay scale has been upgraded on the recommendation of Central Pay Commission as indicated in para B and C of the first Schedule of the Rules of 2008, the fixation has to be made Under Rule 7. However, it was not the case of upgradation of the post as a result of the recommendation of the 6th Pay Commission and Schedule of Rules of 2008, but it was under ACP scheme which is a different scheme than the one as provided in the first Schedule to the Rules 2008. The Respondent has opted for revision of pay scale from the date of upgradation in the ACP scale w.e.f. 10.08.2006. Obviously, his pay has to be fixed Under Rule 11 which deals with fixation of the pay in the revised pay scale in case such an option is exercised under the Rules of 2008. The Division Bench of the High Court was absolutely correct in applying Rule 11 as Note 2A of Rule 7 is not applicable in the case. 15. Coming to the decision rendered by this Court in K.V. Rama Raju and Ors. (supra), it does not appear from the facts that it was a case of exercising option from the date of upgradation under ACP that came for consideration before this Court. It is not clear whether it was a case of upgradation as a result of the recommendation of the 6th Pay Commission or independent thereto. In both the cases consequences are different. In the earlier exigency Rule 7 is attracted and in the later one Rule 11 of Rules of 2008 is attracted for fixation of pay. Thus, the decision cannot be an authority on the aforesaid issue which has not been decided. Apart from that, it was not the case of Appellants that upgraded pay scale has been brought about by 6th Pay Commission as per provisions contained in Schedule of the Rules 2008 as provided in Note 2A of Rule 7. Thus, the decision in K.V. Rama Raju and Ors. (supra) is wholly distinguishable and cannot be applied to such cases where upgradation has been made otherwise than as per Schedule to Rules of 2008 framed as per recommendations of 6th Pay Commission and option is exercised in the aforesaid manner.
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12. It is not in dispute that the ACP was granted to the Respondent between 01.01.2006 and 29.8.2008 i.e., the date of notification of Rules 2008. It was granted w.e.f. 10.8.2006 vide order dated 25.4.2008. Thus, the benefit of upgraded pay scale was given to the Respondent in between the aforesaid dates13. Once he has elected for revised pay scale w.e.f. 10.8.2006, the date on which he was placed in the upgraded pay scale, obviously, Rule 7 cannot be said to be applicable. It is Rule 11 which is applicable14. Rule 7 deals with the fixation of initial pay in the revised pay structure as per the 6th Central Pay Commission. Note 2A to Rule 7 relied upon by the Appellants makes it vivid that where a pay scale has been upgraded on the recommendation of Central Pay Commission as indicated in para B and C of the first Schedule of the Rules of 2008, the fixation has to be made Under Rule 7. However, it was not the case of upgradation of the post as a result of the recommendation of the 6th Pay Commission and Schedule of Rules of 2008, but it was under ACP scheme which is a different scheme than the one as provided in the first Schedule to the Rules 2008. The Respondent has opted for revision of pay scale from the date of upgradation in the ACP scale w.e.f. 10.08.2006. Obviously, his pay has to be fixed Under Rule 11 which deals with fixation of the pay in the revised pay scale in case such an option is exercised under the Rules of 2008. The Division Bench of the High Court was absolutely correct in applying Rule 11 as Note 2A of Rule 7 is not applicable in the case15. Coming to the decision rendered by this Court in K.V. Rama Raju and Ors. (supra), it does not appear from the facts that it was a case of exercising option from the date of upgradation under ACP that came for consideration before this Court. It is not clear whether it was a case of upgradation as a result of the recommendation of the 6th Pay Commission or independent thereto. In both the cases consequences are different. In the earlier exigency Rule 7 is attracted and in the later one Rule 11 of Rules of 2008 is attracted for fixation of pay. Thus, the decision cannot be an authority on the aforesaid issue which has not been decided. Apart from that, it was not the case of Appellants that upgraded pay scale has been brought about by 6th Pay Commission as per provisions contained in Schedule of the Rules 2008 as provided in Note 2A of Rule 7. Thus, the decision in K.V. Rama Raju and Ors. (supra) is wholly distinguishable and cannot be applied to such cases where upgradation has been made otherwise than as per Schedule to Rules of 2008 framed as per recommendations of 6th Pay Commission and option is exercised in the aforesaid manner.
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Tvl. Ramco Cement Distribution Company Private Limited v. State of Tamil Nadu Vs. Messrs Dalmia Cement (Bharat) Limited | of goods sold. The conditions of the rule not having been complied with, the appellant was not entitled to the deduction in respect of freight." * 12. The same conclusion was reached by this Court in Dyer Meakin Breweries Ltd. v. State of Kerala( 1970 (3) SCC 253 : 1970 (26) STC 248 ) . Here, the appellant-company, which manufactured liquor at various place in U.P. and Harayana, transported the goods from its breweries and distilleries to its place of business in Ernakulam and sold them there. When selling liquor to the appellant made out separate bills for ex-factory price and for "freight and handling charges". The appellant claimed that the amount charged for "freight and handling charges" incurred by it in transporting the goods from the breweries and distilleries to the warehouse in Kerala were eligible for deduction under Rule 9(f) of the Kerala General Sales Tax Rules, 1963, a rule which is in the same terms as Rule 6, with which we are now concerned in the present case. This claim was negative by this Court. The Court observed: (SCC p. 254, para 3). "It is common ground that the sale of the liquor took place in Ernakulam. The company arranges to transport liquor for the sale from the factories to its warehouse at Ernakulam. It was not brought for any individual customer. All the expenditure incurred is prior to the sale and was evidently a component of the price for which the goods were sold. It is true that separate bills were made out for the price of the goods ex-factory and for freight and handling charges. But, in our judgment, the Tribunal was right in holding that the exemption under clause (f) of Rule 9 applies when the freight and charges for packing and delivery are found to be incidental to the sale and when they are specified and charged for by the dealer separately and expenditure incurred for freight and packing and delivery charges prior to the sale and for transporting the goods from the factories to the warehouse of the Company is not admissible under Rule 9(f). Rule 9 (f) seeks to exclude only those charges which are incurred by the dealer either expressly or by necessary implication for and on behalf of the purchaser after the sale when the dealer undertakes to transport the goods and to deliver the same or where the expenditure is incurred as an incident of sale. It is not intended to exclude from the taxable turnover any component of the price, expenditure incurred by the dealer which he had to incur before sale and to make the goods available to the intending customer at the place of sale." * 13. In D.C. Johar & Sons (P.) Ltd. v. STO( 1971 (27) STC 120 (SC) : 1969 KLT 640 ) the same question arose, again in the context of the Kerala General Sales Tax Rules, 1963. The Court followed the decision in Dyer Meakin Breweries Ltd., case( 1970 (3) SCC 253 : 1970 (26) STC 248 ). It was pointed out that the decision in Tungabhadra Industries Ltd.( 1960 (11) STC 827 : 1961 AIR(SC) 412) had rested on the facts of the case without going into the interpretation of the relevant rule of the Madras General Sales Tax (Turnover and Assessment) Rule, 1939. It was however, held that the Dyer Meakin decision( 1970 (3) SCC 253 : 1970 (26) STC 248 ) would apply to the case before the Court. A number of subsequent decisions has also held to like effect CCT v. Ashoka Marketing Ltd( 1973 (32) STC 411 (Pat)); State of Mysore v. Panyam Cements and Mineral Industries Ltd.( 1974 (33) STC 407 (Mys)); State of T. N. v. Parry & Co.( 1976 (38) STC 122 (Mad)) ; State of T.N. v. Chettinad Cement Corporation Ltd.( 1976 (38) STC 519 (Mad)) , and Premier breweries Ltd. v. State of Karnataka( 1984 (56) STC 14 (Karn)). We are, therefore, of the opinion that the High Court was in error in trying to distinguish the decision in the Hindustan Sugar Mills case and in excluding freight charges from the taxable turnover for the purposes of the Tamil Nadu Acts. 14. The position in regard to packing charges as well as the excise duty on packing charges is also no different. As pointed out by this Court in the Hindustan Sugar Mills case( 1978 (4) SCC 271 : 1978 SCC(Tax) 225 : 1979 (43) STC 13 ) and in CST v. Rai Bharat Das & Bros.( 1989 (1) SCC 143 : 1988 (71) STC 277 ), packing charges from part of "sale price" because the expression "any sum charged for anything done by the dealer in respect of the goods" used in the definition in Section 2(h) of the Central Sales Tax Act, 1956, squarely covers such charges, as pacing is an integral element of the transaction of sale and packing charges are an integral part of the sale price. Once this is so, it follows that these charges and the excise duty thereon cannot be excluded from the turnover for purposes of the Central Sales Tax Act. Nor will, for the reasons earlier discussed in relation to freight charges, the assessee be in a position to claim a deduction in respect of these charges by virtue of Rule 6(cc) of the Sales Tax Rules. In our view, this position has been correctly set out, applying the decision in the case of Rai Bharat Das and Bros.( 1989 (1) SCC 1453 : 1988 (71) STC 277 ), in the State of T.N. v. Vanniaperumal & Co.( 1990 (76) STC 203 (Made)), Dalmia Cement (Bharat) Ltd. v. State of T.N.( 1991 (81) STC 327 (Mad)) and Dalmia Cement (Bharat) Ltd. v. State of T.N.( 1991 (83) STC 442 (Mad)) We are, therefore, of the opinion that the packing charges and excise duty thereon cannot also be deducted in computing the taxable turnover for the purposes of the Tamil Nadu Acts. | 1[ds]8. For the reasons mention above, we are of the opinion that the High Court was fully justified in applying the decision in Hindustan Sugar Mills Ltd.( 1978 (4) SCC 271 : 1978 SCC(Tax) 225 : 1979 (43) STC 13 ) to the present case and denying the benefit of deduction of freight charges from the controlled price to arrive at the turnover of the assessee for the purposes of the Central Sales TaxWe agree with the learned counsel for the State of Tamil Nadu that, in coming to the above conclusion, the High Court has overlooked the significance of the inclusion of the words "without including them in the price of the goods sold" in clause (c). These words make it clear that the freight charges are not to be deducted in the computation of the taxable turnover merely because they are specified and charged for separately by the dealer. A further pre-requisite for their deduction is that these charges should not have been included in the price of goods sold. This takes us back to the consideration as to whether the price charged for by the assessee includes freight or not, which we have discussed elaborately in respect of the levy of Central Sales Tax. Once we come to the conclusion-as we have-that the freight has been included as part of the price sold and that the liability to pay the freight remains with the dealer, thought permitted to be set off against the sale price by the purchaser or consumer, if follows that the deduction of the freight as a separate item in the computation of taxable turnover is not permissible. Rule 6(c) will apply only in cases where the sale price charged does not include the freight charges and the dealer separately collects freight from the consumer without including the same in the sale price. In fact, this aspect has been made clear in three decisions of this Court dealing with similar rules. In Tungabhadra Industries Ltd. v. CTO4( 1960 (11) STC 827 : 1961 AIR(SC) 412) the dealer claimed deduction of railway freight from the amount of price of the goods sold as state in the bill on the strength of Rule 5(1)(g) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, which is in precisely the same terms, as Rule 6, which is now being considered by us. The claim was negatived by this Court. Itappellant claimed exemption on a sum of Rs. 3, 88, 377-13-3-on the ground that is represented the freight in respect of the goods sold by the appellant, asserting that they had been charged for separately. The assessing officer rejected the claim and this rejection was upheld by the departmental authorities and by the High Court in revision. It would be seen that in order to claim the benefit of this exemption the freight should (i) have been specified and charged for by the dealer separately, and (ii) the same should not have been included in the price of the goods sold. The learned Judges of the High Court held that neither of these conditions was satisfied by the bills produced by the appellant. We consider, the decision of the High Court on this point was correct. In the specimen bill which the learned counsel for the appellants has placed before us, after setting out the quantity sold by weight (23, 760 lb.) the price is specified as 15 annas 9 pies per lb. and the total amount of the price is determined at Rs. 23, 388-12-0. From this the railway freight of Rs. 1, 439-12-0 is deducted and the balance is shown as the sum on which sales tax has been computed. From the contents of this invoice it would be seen that the appellant has charged a price inclusive of the railway freight and would therefore be outside the terms of Rule 5(1)(g) which requires that in order to enable a dealer to claim the deduction it should be charged for separately and not included in the price of goods sold. The conditions of the rule not having been complied with, the appellant was not entitled to the deduction in respect of freight."The same conclusion was reached by this Court in Dyer Meakin Breweries Ltd. v. State of Kerala( 1970 (3) SCC 253 : 1970 (26) STC 248 ) . Here, the appellant-company, which manufactured liquor at various place in U.P. and Harayana, transported the goods from its breweries and distilleries to its place of business in Ernakulam and sold them there. When selling liquor to the appellant made out separate bills for ex-factory price and for "freight and handling charges". The appellant claimed that the amount charged for "freight and handling charges" incurred by it in transporting the goods from the breweries and distilleries to the warehouse in Kerala were eligible for deduction under Rule 9(f) of the Kerala General Sales Tax Rules, 1963, a rule which is in the same terms as Rule 6, with which we are now concerned in the present case.We have heard learned counsel on both sides. In our opinion, so far as C.S.T. is concerned, the issue in the present case is fully and directly covered by the decision of this Court in Hindustan Sugar Mills Limited v. State of Rajasthan ( 1978 (4) SCC 271 : 1978 SCC(Tax) 225: 1979 (43) STC 13 ). As stated earlier, in assessee relied strongly on the decision of this Court in Hyderabad Asbestos Cement Products Ltd. v. State of A.P.( 1969 (24) STC 487 :(SC)) but this decision has been considered and explained in the Hindustan Sugar Mills case ( 1978 (4) SCC 271 : 1978 SCC(Tax) 225: 1979 (43) STC 13 ). We do not wish to state the facts or discuss the issues at great length since, in our opinion, they are all facts and issues that were under consideration by this Court in Hindustan Sugar Mills Ltd.Interesting as these arguments are, we find that they are merely a repetition of what was urged in the case of Hindustan Sugar Mills Ltd ( 1978 (4) SCC 271 : 1978 SCC(Tax) 225: 1979 (43) STCis, therefore, no difference either on facts or in principle between this case and the Hindustan Sugar Mills Ltd. case ( 1978 (4) SCC 271 : 1978 SCC(Tax) 225: 1979 (43) STChave heard learned counsel on both sides and we do not find any reason to doubt or dissent from the decision in the Hindustan Sugar Mills Ltd. case ( 1978 (4) SCC 271 : 1978 SCC(Tax) 225: 1979 (43) STC 13 ). On the other had, as pointed out by the learned Judges in that case, the whole purpose of the Cement Control Order was that cement should be available for sale at all places in the country at a controlled price. No doubt, the price was described as a maximum beyond which the sale price could not go but the intention, which was also carried out by all the suppliers, was that cement was to be sold at what may be described as controlled price on terms free on rail destination. In other words, the producer was entitled to the controlled price irrespective of the amount of freight which might have been incurred in respect of the transaction. Having regard to the fact that the freight on consignments to places near the factory and consignments to places far away from the factories could show a lot of variation, the control order created an machinery by which all freight charges were credited to a common account and any particular cement manufacturer incurring more than a specified amount was entitled to be reimbursed for the excess freight incurred by him. As the learned Judges pointed out in the earlier decision, the whole Control Order proceeds on the footing that the freight charges are to be met by the producer and that he was entitled to a consolidated price irrespective of the freight he may have incurred. In his view of the matter, the sale price, on the terms of the Central Sales Tax Act, could only be the controlled price as fixed by the Cement ControlIn D.C. Johar & Sons (P.) Ltd. v. STO( 1971 (27) STC 120 (SC) : 1969 KLT 640 ) the same question arose, again in the context of the Kerala General Sales Tax Rules, 1963. The Court followed the decision in Dyer Meakin Breweries Ltd., case( 1970 (3) SCC 253 : 1970 (26) STC 248 ). It was pointed out that the decision in Tungabhadra Industries Ltd.( 1960 (11) STC 827 : 1961 AIR(SC) 412) had rested on the facts of the case without going into the interpretation of the relevant rule of the Madras General Sales Tax (Turnover and Assessment) Rule, 1939. It was however, held that the Dyer Meakin decision( 1970 (3) SCC 253 : 1970 (26) STC 248 ) would apply to the case before the Court. A number of subsequent decisions has also held to like effect CCT v. Ashoka Marketing Ltd( 1973 (32) STC 411 (Pat)); State of Mysore v. Panyam Cements and Mineral Industries Ltd.( 1974 (33) STC 407 (Mys)); State of T. N. v. Parry & Co.( 1976 (38) STC 122 (Mad)) ; State of T.N. v. Chettinad Cement Corporation Ltd.( 1976 (38) STC 519 (Mad)) , and Premier breweries Ltd. v. State of Karnataka( 1984 (56) STC 14 (Karn)). We are, therefore, of the opinion that the High Court was in error in trying to distinguish the decision in the Hindustan Sugar Mills case and in excluding freight charges from the taxable turnover for the purposes of the Tamil NaduThe position in regard to packing charges as well as the excise duty on packing charges is also no different. As pointed out by this Court in the Hindustan Sugar Mills case( 1978 (4) SCC 271 : 1978 SCC(Tax) 225 : 1979 (43) STC 13 ) and in CST v. Rai Bharat Das & Bros.( 1989 (1) SCC 143 : 1988 (71) STC 277 ), packing charges from part of "sale price" because the expression "any sum charged for anything done by the dealer in respect of the goods" used in the definition in Section 2(h) of the Central Sales Tax Act, 1956, squarely covers such charges, as pacing is an integral element of the transaction of sale and packing charges are an integral part of the sale price. Once this is so, it follows that these charges and the excise duty thereon cannot be excluded from the turnover for purposes of the Central Sales Tax Act. Nor will, for the reasons earlier discussed in relation to freight charges, the assessee be in a position to claim a deduction in respect of these charges by virtue of Rule 6(cc) of the Sales Tax Rules. In our view, this position has been correctly set out, applying the decision in the case of Rai Bharat Das and Bros.( 1989 (1) SCC 1453 : 1988 (71) STC 277 ), in the State of T.N. v. Vanniaperumal & Co.( 1990 (76) STC 203 (Made)), Dalmia Cement (Bharat) Ltd. v. State of T.N.( 1991 (81) STC 327 (Mad)) and Dalmia Cement (Bharat) Ltd. v. State of T.N.( 1991 (83) STC 442 (Mad)) We are, therefore, of the opinion that the packing charges and excise duty thereon cannot also be deducted in computing the taxable turnover for the purposes of the Tamil Nadu Acts | 1 | 5,788 | 2,238 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
of goods sold. The conditions of the rule not having been complied with, the appellant was not entitled to the deduction in respect of freight." * 12. The same conclusion was reached by this Court in Dyer Meakin Breweries Ltd. v. State of Kerala( 1970 (3) SCC 253 : 1970 (26) STC 248 ) . Here, the appellant-company, which manufactured liquor at various place in U.P. and Harayana, transported the goods from its breweries and distilleries to its place of business in Ernakulam and sold them there. When selling liquor to the appellant made out separate bills for ex-factory price and for "freight and handling charges". The appellant claimed that the amount charged for "freight and handling charges" incurred by it in transporting the goods from the breweries and distilleries to the warehouse in Kerala were eligible for deduction under Rule 9(f) of the Kerala General Sales Tax Rules, 1963, a rule which is in the same terms as Rule 6, with which we are now concerned in the present case. This claim was negative by this Court. The Court observed: (SCC p. 254, para 3). "It is common ground that the sale of the liquor took place in Ernakulam. The company arranges to transport liquor for the sale from the factories to its warehouse at Ernakulam. It was not brought for any individual customer. All the expenditure incurred is prior to the sale and was evidently a component of the price for which the goods were sold. It is true that separate bills were made out for the price of the goods ex-factory and for freight and handling charges. But, in our judgment, the Tribunal was right in holding that the exemption under clause (f) of Rule 9 applies when the freight and charges for packing and delivery are found to be incidental to the sale and when they are specified and charged for by the dealer separately and expenditure incurred for freight and packing and delivery charges prior to the sale and for transporting the goods from the factories to the warehouse of the Company is not admissible under Rule 9(f). Rule 9 (f) seeks to exclude only those charges which are incurred by the dealer either expressly or by necessary implication for and on behalf of the purchaser after the sale when the dealer undertakes to transport the goods and to deliver the same or where the expenditure is incurred as an incident of sale. It is not intended to exclude from the taxable turnover any component of the price, expenditure incurred by the dealer which he had to incur before sale and to make the goods available to the intending customer at the place of sale." * 13. In D.C. Johar & Sons (P.) Ltd. v. STO( 1971 (27) STC 120 (SC) : 1969 KLT 640 ) the same question arose, again in the context of the Kerala General Sales Tax Rules, 1963. The Court followed the decision in Dyer Meakin Breweries Ltd., case( 1970 (3) SCC 253 : 1970 (26) STC 248 ). It was pointed out that the decision in Tungabhadra Industries Ltd.( 1960 (11) STC 827 : 1961 AIR(SC) 412) had rested on the facts of the case without going into the interpretation of the relevant rule of the Madras General Sales Tax (Turnover and Assessment) Rule, 1939. It was however, held that the Dyer Meakin decision( 1970 (3) SCC 253 : 1970 (26) STC 248 ) would apply to the case before the Court. A number of subsequent decisions has also held to like effect CCT v. Ashoka Marketing Ltd( 1973 (32) STC 411 (Pat)); State of Mysore v. Panyam Cements and Mineral Industries Ltd.( 1974 (33) STC 407 (Mys)); State of T. N. v. Parry & Co.( 1976 (38) STC 122 (Mad)) ; State of T.N. v. Chettinad Cement Corporation Ltd.( 1976 (38) STC 519 (Mad)) , and Premier breweries Ltd. v. State of Karnataka( 1984 (56) STC 14 (Karn)). We are, therefore, of the opinion that the High Court was in error in trying to distinguish the decision in the Hindustan Sugar Mills case and in excluding freight charges from the taxable turnover for the purposes of the Tamil Nadu Acts. 14. The position in regard to packing charges as well as the excise duty on packing charges is also no different. As pointed out by this Court in the Hindustan Sugar Mills case( 1978 (4) SCC 271 : 1978 SCC(Tax) 225 : 1979 (43) STC 13 ) and in CST v. Rai Bharat Das & Bros.( 1989 (1) SCC 143 : 1988 (71) STC 277 ), packing charges from part of "sale price" because the expression "any sum charged for anything done by the dealer in respect of the goods" used in the definition in Section 2(h) of the Central Sales Tax Act, 1956, squarely covers such charges, as pacing is an integral element of the transaction of sale and packing charges are an integral part of the sale price. Once this is so, it follows that these charges and the excise duty thereon cannot be excluded from the turnover for purposes of the Central Sales Tax Act. Nor will, for the reasons earlier discussed in relation to freight charges, the assessee be in a position to claim a deduction in respect of these charges by virtue of Rule 6(cc) of the Sales Tax Rules. In our view, this position has been correctly set out, applying the decision in the case of Rai Bharat Das and Bros.( 1989 (1) SCC 1453 : 1988 (71) STC 277 ), in the State of T.N. v. Vanniaperumal & Co.( 1990 (76) STC 203 (Made)), Dalmia Cement (Bharat) Ltd. v. State of T.N.( 1991 (81) STC 327 (Mad)) and Dalmia Cement (Bharat) Ltd. v. State of T.N.( 1991 (83) STC 442 (Mad)) We are, therefore, of the opinion that the packing charges and excise duty thereon cannot also be deducted in computing the taxable turnover for the purposes of the Tamil Nadu Acts.
### Response:
1
### Explanation:
the decision of this Court in Hyderabad Asbestos Cement Products Ltd. v. State of A.P.( 1969 (24) STC 487 :(SC)) but this decision has been considered and explained in the Hindustan Sugar Mills case ( 1978 (4) SCC 271 : 1978 SCC(Tax) 225: 1979 (43) STC 13 ). We do not wish to state the facts or discuss the issues at great length since, in our opinion, they are all facts and issues that were under consideration by this Court in Hindustan Sugar Mills Ltd.Interesting as these arguments are, we find that they are merely a repetition of what was urged in the case of Hindustan Sugar Mills Ltd ( 1978 (4) SCC 271 : 1978 SCC(Tax) 225: 1979 (43) STCis, therefore, no difference either on facts or in principle between this case and the Hindustan Sugar Mills Ltd. case ( 1978 (4) SCC 271 : 1978 SCC(Tax) 225: 1979 (43) STChave heard learned counsel on both sides and we do not find any reason to doubt or dissent from the decision in the Hindustan Sugar Mills Ltd. case ( 1978 (4) SCC 271 : 1978 SCC(Tax) 225: 1979 (43) STC 13 ). On the other had, as pointed out by the learned Judges in that case, the whole purpose of the Cement Control Order was that cement should be available for sale at all places in the country at a controlled price. No doubt, the price was described as a maximum beyond which the sale price could not go but the intention, which was also carried out by all the suppliers, was that cement was to be sold at what may be described as controlled price on terms free on rail destination. In other words, the producer was entitled to the controlled price irrespective of the amount of freight which might have been incurred in respect of the transaction. Having regard to the fact that the freight on consignments to places near the factory and consignments to places far away from the factories could show a lot of variation, the control order created an machinery by which all freight charges were credited to a common account and any particular cement manufacturer incurring more than a specified amount was entitled to be reimbursed for the excess freight incurred by him. As the learned Judges pointed out in the earlier decision, the whole Control Order proceeds on the footing that the freight charges are to be met by the producer and that he was entitled to a consolidated price irrespective of the freight he may have incurred. In his view of the matter, the sale price, on the terms of the Central Sales Tax Act, could only be the controlled price as fixed by the Cement ControlIn D.C. Johar & Sons (P.) Ltd. v. STO( 1971 (27) STC 120 (SC) : 1969 KLT 640 ) the same question arose, again in the context of the Kerala General Sales Tax Rules, 1963. The Court followed the decision in Dyer Meakin Breweries Ltd., case( 1970 (3) SCC 253 : 1970 (26) STC 248 ). It was pointed out that the decision in Tungabhadra Industries Ltd.( 1960 (11) STC 827 : 1961 AIR(SC) 412) had rested on the facts of the case without going into the interpretation of the relevant rule of the Madras General Sales Tax (Turnover and Assessment) Rule, 1939. It was however, held that the Dyer Meakin decision( 1970 (3) SCC 253 : 1970 (26) STC 248 ) would apply to the case before the Court. A number of subsequent decisions has also held to like effect CCT v. Ashoka Marketing Ltd( 1973 (32) STC 411 (Pat)); State of Mysore v. Panyam Cements and Mineral Industries Ltd.( 1974 (33) STC 407 (Mys)); State of T. N. v. Parry & Co.( 1976 (38) STC 122 (Mad)) ; State of T.N. v. Chettinad Cement Corporation Ltd.( 1976 (38) STC 519 (Mad)) , and Premier breweries Ltd. v. State of Karnataka( 1984 (56) STC 14 (Karn)). We are, therefore, of the opinion that the High Court was in error in trying to distinguish the decision in the Hindustan Sugar Mills case and in excluding freight charges from the taxable turnover for the purposes of the Tamil NaduThe position in regard to packing charges as well as the excise duty on packing charges is also no different. As pointed out by this Court in the Hindustan Sugar Mills case( 1978 (4) SCC 271 : 1978 SCC(Tax) 225 : 1979 (43) STC 13 ) and in CST v. Rai Bharat Das & Bros.( 1989 (1) SCC 143 : 1988 (71) STC 277 ), packing charges from part of "sale price" because the expression "any sum charged for anything done by the dealer in respect of the goods" used in the definition in Section 2(h) of the Central Sales Tax Act, 1956, squarely covers such charges, as pacing is an integral element of the transaction of sale and packing charges are an integral part of the sale price. Once this is so, it follows that these charges and the excise duty thereon cannot be excluded from the turnover for purposes of the Central Sales Tax Act. Nor will, for the reasons earlier discussed in relation to freight charges, the assessee be in a position to claim a deduction in respect of these charges by virtue of Rule 6(cc) of the Sales Tax Rules. In our view, this position has been correctly set out, applying the decision in the case of Rai Bharat Das and Bros.( 1989 (1) SCC 1453 : 1988 (71) STC 277 ), in the State of T.N. v. Vanniaperumal & Co.( 1990 (76) STC 203 (Made)), Dalmia Cement (Bharat) Ltd. v. State of T.N.( 1991 (81) STC 327 (Mad)) and Dalmia Cement (Bharat) Ltd. v. State of T.N.( 1991 (83) STC 442 (Mad)) We are, therefore, of the opinion that the packing charges and excise duty thereon cannot also be deducted in computing the taxable turnover for the purposes of the Tamil Nadu Acts
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Bharathi Knitting Company Vs. Dhl Worldwide Express (Courier Division of Airfreight Limited ) | and limited their liabilities, the question arises : whether the State Commission or the National Commission under the Act could give relief for damages in excess of the limits prescribed under the contract? 4. It is true that the limit of damages would depend upon the terms of the contract and facts in each case. In Ansons Law of Contract, 24th edition, at page 152, on exemption clause with regard to notice of a printed clause, it was stated that a person who signs a document containing contractual terms is normally bound by them even though he has not read them, and even though he is ignorant of their precise legal effect. But if the document is not signed, being merely delivered to him, then the question arises : whether the terms of the contract were adequately brought to his notice ? The terms of the contract have elaborately been considered and decided. The details thereof are not necessary for us to pursue. It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R. F. Nariman, learned senior counsel, that normally parties are bound by such contract ; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is : whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract ? It is true, as contended by Mr. M. N. Krishnamani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to the original civil court established under the Civil Procedure Code, 1908, or the appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract. The National Commission in the impugned order pointed out as under :"We have considered the submissions of counsel for the parties on the facts of the case and having regard to the earlier decisions of this Commission. The consignment containing the documents sent in the cover had been accepted by the appellant and was subject to the terms and conditions mentioned on the consignment note. The complainant had signed the said note at the time of entrusting the consignment and had agreed to and accepted the terms and conditions mentioned therein. Clauses 5 and 7 of the terms and conditions as also the important notice mentioned on the consignment note are reproduced below : Clause 5 : Limitation of liability : Without prejudice to clause 7 the liability of DHL for any loss or damage to the shipment, which term shall include all documents or parcels consigned to DHL under this air bill and shall not mean any one document or envelope included in the shipment is limited to the lesser of (a) US $ 100 ; (b) The amount of loss or damage to a document or parcel actually sustained ; or (c) The actual value of the document or parcel as determined under section 6 hereof, without regard to the commercial utility or special value to the shipper. Clause 7: Consequent damages excluded : DHL shall not be liable in any event for any consequential or special damages or other indirect loss, however arising whether or not DHL had knowledge that such damage might be incurred including but not limited to loss of income, profits interest, utility or loss of market. Important notice : By the conditions set out below DHL and its servants and agents are firstly not to be liable at all for certain losses and damages and, secondly, wherever they are to be liable the amount of liability strictly limited to the amount stated in condition and customers are, therefore, advised to purchase insurance cover to ensure that their interests are fully protected in all event.Under clause 5 of the terms and conditions of the contract, the liability of the appellant for any loss or damage to the consignment was limited to US $ 100. Clause 7 of the contract specifically provided that the liability of the appellant for any consequential or special damages or any other indirect loss, that may occur including the loss of market or profits, etc., was excluded. It is also pertinent to note that despite the advice in the important notice, the complainant did not disclose at the time of consignment the contents of the cover and also not purchased the insurance cover to ensure that their interests are fully protected in all events." 5. In view of the above consideration and findings, we are of the opinion that the National Commission was right in limiting the liability undertaken in the contract entered into by the parties and in awarding the amount for deficiency in service to the extent of the liability undertaken by the respondent. Therefore, we do not think that there is any illegality in the order passed by the Commission. Shri Krishnamani has brought to our notice that there are number of judgments covering divergent views. In view of the view we have expressed above, it is now settled law and the Tribunals would follow the same. Lastly, it is contended that besides the amounts awarded by the State Commission, liberty may be given to the appellant to pursue the remedy available in law. It is needless to mention that the remedy available at law would be pursued according to law. 6. | 0[ds]We find no force in the contention.It is true that the Act is a protective legislation to make available inexpensive and expeditious summary remedy. There must be a finding that the respondent was responsible for the deficiency in service, the consequence of which would be that the appellant had incurred the liability for loss or damages suffered by the consumer due to deficiency in service thereofThe terms of the contract have elaborately been considered and decided. The details thereof are not necessary for us to pursue. It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R. F. Nariman, learned senior counsel, that normally parties are bound by such contract ; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be establishedIt is true, as contended by Mr. M. N. Krishnamani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to the original civil court established under the Civil Procedure Code, 1908, or the appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract.In view of the above consideration and findings, we are of the opinion that the National Commission was right in limiting the liability undertaken in the contract entered into by the parties and in awarding the amount for deficiency in service to the extent of the liability undertaken by the respondent. Therefore, we do not think that there is any illegality in the order passed by the Commission.Shri Krishnamani has brought to our notice that there are number of judgments covering divergent views.In view of the view we have expressed above, it is now settled law and the Tribunals would follow the same. Lastly, it is contended that besides the amounts awarded by the State Commission, liberty may be given to the appellant to pursue the remedy available in law. It is needless to mention that the remedy available at law would be pursued according to law. | 0 | 1,713 | 465 | ### Instruction:
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and limited their liabilities, the question arises : whether the State Commission or the National Commission under the Act could give relief for damages in excess of the limits prescribed under the contract? 4. It is true that the limit of damages would depend upon the terms of the contract and facts in each case. In Ansons Law of Contract, 24th edition, at page 152, on exemption clause with regard to notice of a printed clause, it was stated that a person who signs a document containing contractual terms is normally bound by them even though he has not read them, and even though he is ignorant of their precise legal effect. But if the document is not signed, being merely delivered to him, then the question arises : whether the terms of the contract were adequately brought to his notice ? The terms of the contract have elaborately been considered and decided. The details thereof are not necessary for us to pursue. It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R. F. Nariman, learned senior counsel, that normally parties are bound by such contract ; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is : whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract ? It is true, as contended by Mr. M. N. Krishnamani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to the original civil court established under the Civil Procedure Code, 1908, or the appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract. The National Commission in the impugned order pointed out as under :"We have considered the submissions of counsel for the parties on the facts of the case and having regard to the earlier decisions of this Commission. The consignment containing the documents sent in the cover had been accepted by the appellant and was subject to the terms and conditions mentioned on the consignment note. The complainant had signed the said note at the time of entrusting the consignment and had agreed to and accepted the terms and conditions mentioned therein. Clauses 5 and 7 of the terms and conditions as also the important notice mentioned on the consignment note are reproduced below : Clause 5 : Limitation of liability : Without prejudice to clause 7 the liability of DHL for any loss or damage to the shipment, which term shall include all documents or parcels consigned to DHL under this air bill and shall not mean any one document or envelope included in the shipment is limited to the lesser of (a) US $ 100 ; (b) The amount of loss or damage to a document or parcel actually sustained ; or (c) The actual value of the document or parcel as determined under section 6 hereof, without regard to the commercial utility or special value to the shipper. Clause 7: Consequent damages excluded : DHL shall not be liable in any event for any consequential or special damages or other indirect loss, however arising whether or not DHL had knowledge that such damage might be incurred including but not limited to loss of income, profits interest, utility or loss of market. Important notice : By the conditions set out below DHL and its servants and agents are firstly not to be liable at all for certain losses and damages and, secondly, wherever they are to be liable the amount of liability strictly limited to the amount stated in condition and customers are, therefore, advised to purchase insurance cover to ensure that their interests are fully protected in all event.Under clause 5 of the terms and conditions of the contract, the liability of the appellant for any loss or damage to the consignment was limited to US $ 100. Clause 7 of the contract specifically provided that the liability of the appellant for any consequential or special damages or any other indirect loss, that may occur including the loss of market or profits, etc., was excluded. It is also pertinent to note that despite the advice in the important notice, the complainant did not disclose at the time of consignment the contents of the cover and also not purchased the insurance cover to ensure that their interests are fully protected in all events." 5. In view of the above consideration and findings, we are of the opinion that the National Commission was right in limiting the liability undertaken in the contract entered into by the parties and in awarding the amount for deficiency in service to the extent of the liability undertaken by the respondent. Therefore, we do not think that there is any illegality in the order passed by the Commission. Shri Krishnamani has brought to our notice that there are number of judgments covering divergent views. In view of the view we have expressed above, it is now settled law and the Tribunals would follow the same. Lastly, it is contended that besides the amounts awarded by the State Commission, liberty may be given to the appellant to pursue the remedy available in law. It is needless to mention that the remedy available at law would be pursued according to law. 6.
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We find no force in the contention.It is true that the Act is a protective legislation to make available inexpensive and expeditious summary remedy. There must be a finding that the respondent was responsible for the deficiency in service, the consequence of which would be that the appellant had incurred the liability for loss or damages suffered by the consumer due to deficiency in service thereofThe terms of the contract have elaborately been considered and decided. The details thereof are not necessary for us to pursue. It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R. F. Nariman, learned senior counsel, that normally parties are bound by such contract ; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be establishedIt is true, as contended by Mr. M. N. Krishnamani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to the original civil court established under the Civil Procedure Code, 1908, or the appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract.In view of the above consideration and findings, we are of the opinion that the National Commission was right in limiting the liability undertaken in the contract entered into by the parties and in awarding the amount for deficiency in service to the extent of the liability undertaken by the respondent. Therefore, we do not think that there is any illegality in the order passed by the Commission.Shri Krishnamani has brought to our notice that there are number of judgments covering divergent views.In view of the view we have expressed above, it is now settled law and the Tribunals would follow the same. Lastly, it is contended that besides the amounts awarded by the State Commission, liberty may be given to the appellant to pursue the remedy available in law. It is needless to mention that the remedy available at law would be pursued according to law.
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Hamilton and Company Private, Limited Vs. Its Workmen | demanded two months further wages as bonus on the ground that large profits had been made by the appellant in the year in question. Consequently a reference was made by the Government of West Bengal the tribunal for decision of the question whether any additional bonus, if so, what was payable to the respondents. The tribunal found that there was sufficient available surplus to justify payment of additional bonus amounting to two months basic wages and ordered accordingly. The present appeal is from this decision of the tribunal. 2. The only point that has been urged on behalf of the appellant is that the tribunal was not correct in taking into account the income from a certain house in New Delhi for the purpose of bonus. The case of the appellant is that this was extraneous income within the meaning of the decision of this Court in Tata Oil Mills Company, Ltd., v. Its workmen [1959 - II L.L.J. 250] and should not have been taken into account. It is not disputed that if this income is not taken into account, there will be no case for paying any additional bonus to the respondents. 3. Now the case of the appellant with respect to the house property in New Delhi was that it had been built out of a loan of rupees four lakhs, which the appellant had borrowed for the purpose and as such the workmen had contributed nothing to the building of this house and were thus not entitled to ask that the income from this house should be taken into account in arriving at the available surplus for the purpose of the Full Bench formula. The case of the respondents, on the other hand was that this was an investment by the appellant in the usual course of business. It was not disputed by the workmen that rupees four lakhs had been borrowed by the appellant and that the money had been used for extension of buildings in New Delhi. It was also stated that the loan had been paid back out of the total profits of the appellant-company and that this house was thus merely an investment in the shape of house property just like other investments in other forms.The tribunal found that though the loan had been taken, there was nothing to show that it was borrowed specifically for building the house in New Delhi. It also found that the entire income from the house property in New Delhi was shown in the profit and loss account and the expenditure with respect thereto also was part of the profit and loss account. It therefore held that the building of the house in New Delhi was in the nature of an investment to derive a return which was considered to be more favorable compared to investment made in shares and debentures. It finally held that there was nothing to show that the building was constructed out of the loan and no part of the profits of the appellant went into it. 4. It is urged on behalf of the appellant that one of the witnesses for the respondents admitted that the appellant had borrowed rupees four lakhs and that the money had been utilized for extension of buildings. That is undoubtedly so. But that admission must be taken as a whole; all that the admission shows is that money borrowed was used for the extension of buildings and not that an entirely new building was built only out of the borrowed money. One of the witnesses for the appellant certainly said that the house in New Delhi was constructed in 1954-55 and money was procured by loan for the construction but his statement does not show that the entire house in New Delhi was built only out of the loan. It may be added that the loan was only rupees four lakhs and it seems strange that a house which was constructed only for rupees four lakhs should fetch an annual rental of Rs. 2, 08, 288. On the whole we see no reason to disagree with the conclusion of the tribunal that it has not been proved that this house in New Delhi was built only out of the loan and no part of the profits of the appellant-company went into it. There is also no reason to discharge with the finding of the tribunal that it has not been proved that the loan was only utilized for this purpose and none else.The decision of this Court in Tata Oil Mills case [1959 - II L.L.J. 250] (vide supra) does not help the appellant, for the income in this case was earned in the normal course of business inasmuch as the appellant instead of investing in shares and debentures thought it better to invest in house property. 5. Learned counsel for the appellant, however, relies on a decision of the Labour Appellate Tribunal in pierce, Leslie & Co., Ltd. v. Its workmen [1956 - I L.L.J. 458]. In that case it was apparently held that amounts earned as interest on investments must be treated as unrelated to the employees efforts and as such employees could not claim any shares in such income; and therefore income by was of interest on investments made from reserves must be deducted from gross profits for the purpose of ascertaining available surplus. If this means that even income from investments which have arisen out of the profits earned in the past and are part of the normal manner in which business is carried on, has to be excluded as extraneous income, we must hold it to be incorrect in view of the decision in Tata Oil Mills case [1959 - II L.L.J. 250] (vide supra). 6. It is not disputed on behalf of the appellant that if the income from that house in New Delhi is taken into account for the purpose of bonus, the order of the tribunal awarding further two months basic wages as bonus cannot be assailed. | 0[ds]In that case it was apparently held that amounts earned as interest on investments must be treated as unrelated to the employees efforts and as such employees could not claim any shares in such income; and therefore income by was of interest on investments made from reserves must be deducted from gross profits for the purpose of ascertaining available surplus. If this means that even income from investments which have arisen out of the profits earned in the past and are part of the normal manner in which business is carried on, has to be excluded as extraneous income, we must hold it to be incorrect in view of the decision in Tata Oil Mills case [1959II L.L.J. 250] (vide supra)It is not disputed on behalf of the appellant that if the income from that house in New Delhi is taken into account for the purpose of bonus, the order of the tribunal awarding further two months basic wages as bonus cannot be assailed. | 0 | 1,130 | 181 | ### Instruction:
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demanded two months further wages as bonus on the ground that large profits had been made by the appellant in the year in question. Consequently a reference was made by the Government of West Bengal the tribunal for decision of the question whether any additional bonus, if so, what was payable to the respondents. The tribunal found that there was sufficient available surplus to justify payment of additional bonus amounting to two months basic wages and ordered accordingly. The present appeal is from this decision of the tribunal. 2. The only point that has been urged on behalf of the appellant is that the tribunal was not correct in taking into account the income from a certain house in New Delhi for the purpose of bonus. The case of the appellant is that this was extraneous income within the meaning of the decision of this Court in Tata Oil Mills Company, Ltd., v. Its workmen [1959 - II L.L.J. 250] and should not have been taken into account. It is not disputed that if this income is not taken into account, there will be no case for paying any additional bonus to the respondents. 3. Now the case of the appellant with respect to the house property in New Delhi was that it had been built out of a loan of rupees four lakhs, which the appellant had borrowed for the purpose and as such the workmen had contributed nothing to the building of this house and were thus not entitled to ask that the income from this house should be taken into account in arriving at the available surplus for the purpose of the Full Bench formula. The case of the respondents, on the other hand was that this was an investment by the appellant in the usual course of business. It was not disputed by the workmen that rupees four lakhs had been borrowed by the appellant and that the money had been used for extension of buildings in New Delhi. It was also stated that the loan had been paid back out of the total profits of the appellant-company and that this house was thus merely an investment in the shape of house property just like other investments in other forms.The tribunal found that though the loan had been taken, there was nothing to show that it was borrowed specifically for building the house in New Delhi. It also found that the entire income from the house property in New Delhi was shown in the profit and loss account and the expenditure with respect thereto also was part of the profit and loss account. It therefore held that the building of the house in New Delhi was in the nature of an investment to derive a return which was considered to be more favorable compared to investment made in shares and debentures. It finally held that there was nothing to show that the building was constructed out of the loan and no part of the profits of the appellant went into it. 4. It is urged on behalf of the appellant that one of the witnesses for the respondents admitted that the appellant had borrowed rupees four lakhs and that the money had been utilized for extension of buildings. That is undoubtedly so. But that admission must be taken as a whole; all that the admission shows is that money borrowed was used for the extension of buildings and not that an entirely new building was built only out of the borrowed money. One of the witnesses for the appellant certainly said that the house in New Delhi was constructed in 1954-55 and money was procured by loan for the construction but his statement does not show that the entire house in New Delhi was built only out of the loan. It may be added that the loan was only rupees four lakhs and it seems strange that a house which was constructed only for rupees four lakhs should fetch an annual rental of Rs. 2, 08, 288. On the whole we see no reason to disagree with the conclusion of the tribunal that it has not been proved that this house in New Delhi was built only out of the loan and no part of the profits of the appellant-company went into it. There is also no reason to discharge with the finding of the tribunal that it has not been proved that the loan was only utilized for this purpose and none else.The decision of this Court in Tata Oil Mills case [1959 - II L.L.J. 250] (vide supra) does not help the appellant, for the income in this case was earned in the normal course of business inasmuch as the appellant instead of investing in shares and debentures thought it better to invest in house property. 5. Learned counsel for the appellant, however, relies on a decision of the Labour Appellate Tribunal in pierce, Leslie & Co., Ltd. v. Its workmen [1956 - I L.L.J. 458]. In that case it was apparently held that amounts earned as interest on investments must be treated as unrelated to the employees efforts and as such employees could not claim any shares in such income; and therefore income by was of interest on investments made from reserves must be deducted from gross profits for the purpose of ascertaining available surplus. If this means that even income from investments which have arisen out of the profits earned in the past and are part of the normal manner in which business is carried on, has to be excluded as extraneous income, we must hold it to be incorrect in view of the decision in Tata Oil Mills case [1959 - II L.L.J. 250] (vide supra). 6. It is not disputed on behalf of the appellant that if the income from that house in New Delhi is taken into account for the purpose of bonus, the order of the tribunal awarding further two months basic wages as bonus cannot be assailed.
### Response:
0
### Explanation:
In that case it was apparently held that amounts earned as interest on investments must be treated as unrelated to the employees efforts and as such employees could not claim any shares in such income; and therefore income by was of interest on investments made from reserves must be deducted from gross profits for the purpose of ascertaining available surplus. If this means that even income from investments which have arisen out of the profits earned in the past and are part of the normal manner in which business is carried on, has to be excluded as extraneous income, we must hold it to be incorrect in view of the decision in Tata Oil Mills case [1959II L.L.J. 250] (vide supra)It is not disputed on behalf of the appellant that if the income from that house in New Delhi is taken into account for the purpose of bonus, the order of the tribunal awarding further two months basic wages as bonus cannot be assailed.
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Employees State Insurance Corporation Vs. Shalimar Tar Products Limited | the factory, some other items are also requires for carrying out the water-proofing contracts and these materials, which are not produced by the factory, are purchased from outside in bulk. It is in the background of these facts that we have to decide whether the Mistries, supervisors and casual labourers whom the company engages for wages for its water-proofing contracts outside the factory can be said to be persons employed on any work connected with the distribution or sale of the products of the factory. In our view, they do not fall within the inclusive definition as mentioned above. These persons are employed, although for wages, mainly for carrying out the water-proofing contracts and they cannot be said to be employed for the work of distribution or sale of the products of the factory. It is only incidentally that for carrying out the contracts of water-proofing work they utilise some of the products manufactured by the factory and in this way, a part of the products of the factory is distributed or can be said to be sold in the process of carrying out the water-proofing contracts. But that cannot mean that they are persons employed for the work connected with the distribution or sale of the products of the factory.Mr. Jayakar for the appellants has invited our attention to the dictionary meaning of the word "distribution" which occurs in the inclusive definition referred to above and that meaning is "apportionment". According to Mr. Jayakar, a portion of the products of the factory is apportioned for the water-proofing contracts undertaken by the company and, therefore, the persons employed on the work of carrying out the water-proofing contracts would fall within the inclusive definition of the word "employee" given in sub-section (9) of section 2. We are, however, confining ourselves to the facts of this case only. The company, as already noted, was carrying on business of water-proofing since about 1940 in Bombay and, at that time, they were purchasing the required materials from outside. That continued till August 1961. In August 1961, the company started a factory for manufacturing certain products which included articles required for waterproofing. But they manufactured many more articles and only six out of the 32 articles produced by them were required for water-proofing work. This represented only 13 per cent of the total production undertaken by the factory. Even then all the material required for water-proofing which was produced by the factory was not utilized by the company for water-proofing contracts and a portion of the material produced by the factory was sold outside. Even for carrying out the water-proofing contracts, besides the six articles produced by the company, other articles were required and they were purchased form outside. On these facts, it can not be said that the persons employed in the work of water-proofing contacts were so employed on a work connected with the distribution (or apportionment) of the products of the factory.It may be noted that the inclusive definition of "employee" in sub-section (9) of section 2 was introduced by section 2 of Act No. XLIV of 1966 with effect from June 17, 1967. Prior to that, the definition of "employee" was confined to Clauses (i), (ii) and (iii) of sub-section (9) of section 2. Before the inclusive definition was inserted by Act No. XLIV of 1966, a question arose before a Division Bench of this Court in (Employees State Insurance Corporation v. C.H. Raman)1, 1957(1) L.L.J. 267 that where the work of the factory was production of finished articles and it was not its work to sell the products of the factory, could it be said that the work of selling the products of the factory was incidental to or connected with the work of the factory where the finished products were sold within the definition of "employee" in section 2(9) of the E.S.I. Act. It was held in that case that before a person can be said to be an "employee" within the meaning of section 2(9) of the Act, it has to be shown that he has been employed on any work of, or incidental or preliminary to, or connected with the work of the factory. Where it is admitted that the work of the factory ends with production of finished articles and it was not its work to sell the products of the factory, it cannot be held that the work of selling the products of the factory is incidental to, or connected with, the work of the factory. Where the factory and the administrative office maintain two separate musters, wage-rolls and two separate accounts and the person concerned is employed in the administrative office and his work consists mainly of taking down dictation from the manager and other officers and typing letters, it must be held that such a person is not an "employee" within the meaning of the Act. It appears that the legislature wanted to give benefit of E.S.I. Act also to persons employed for wages on work connected with the administration of a factory and, therefore, by Act No. XLIV of 1966, the inclusive definition, as mentioned above, was inserted. The result of this insertion is that the definition of "employee" now includes any person employed for wages on any work connected with the administration of a factory or an establishment or any part, department or branch thereof as also with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment. We have, however, shown on the facts of the present case that the persons employed by the respondent-company for wages on its work of water proofing contracts cannot fall even within the inclusive definition of "employee" given in section 2(9), as they cannot be said to be persons employed on work connected with the distribution or sale of the products of the factory. In this view of the matter, the view taken by the Employees Insurance Court is correct and this appeal must fail. | 0[ds]According to the appellants (the Employees State Insurance Corporation), the workers who are employed by the company oncontracts outside the factory fall within the definition of "employee". Although they do not fall under the direct definition at the work "employee" as mentioned in Clauses (i), (ii) and (iii) of(9) of section 2, they do fall under the inclusive definition which says : "employees" includes any person employed for wages on any work connected with.........the distribution or sale of the products of, the factory". It is an admitted fact that the company undertakescontracts from third persons. In those contracts, Mistries, supervisors and casual labourers are employed. They are shown on theof the company and are paid wages by the company. For the work ofsome products manufactured or produced by the factory are used. In the undertaking by the company of the work ofthe articles produced by the factory are utilised or consumed which, in effect, amounts to the products of the factory being distributed or sold and, therefore, the workers employed by the company for wages on the work connected with the distribution or sale of the products of the factory fall within the inclusive definition of the word "Employee" given in(9) of section 2 of the E.S.I. Act.We have on record the affidavit of J.B. Tamhane, the Divisional Accountant of thefor certain facts which do not seem to have been controverted. These facts are that the company was carrying on the business ofsince about 1940 in Bombay and at that time, the required materials for the purpose of carrying out the jobs ofwere bought from outside. This position continued till August 1961. It was in August 1961 that the company stated a factory for manufacturing various items, like roofing felt, Bitumuls Products, compounds emulsions, etc. The factory produces as many as 32 products, but only six out of these are required forcontracts. Theses constitute only 13 per cent of the total production of the factory. It is also the statement of Tamhane that not all thematerial manufactured by the factory is utilised for thecontracts undertaken by the company and a portion of thematerials produced by the factory is sold outside. It is also his statement that besides the six items which are produced by the factory, some other items are also requires for carrying out thecontracts and these materials, which are not produced by the factory, are purchased from outside in bulk. It is in the background of these facts that we have to decide whether the Mistries, supervisors and casual labourers whom the company engages for wages for itscontracts outside the factory can be said to be persons employed on any work connected with the distribution or sale of the products of the factory. In our view, they do not fall within the inclusive definition as mentioned above. These persons are employed, although for wages, mainly for carrying out thecontracts and they cannot be said to be employed for the work of distribution or sale of the products of the factory. It is only incidentally that for carrying out the contracts ofwork they utilise some of the products manufactured by the factory and in this way, a part of the products of the factory is distributed or can be said to be sold in the process of carrying out thecontracts. But that cannot mean that they are persons employed for the work connected with the distribution or sale of the products of the factory.Mr. Jayakar for the appellants has invited our attention to the dictionary meaning of the word "distribution" which occurs in the inclusive definition referred to above and that meaning is "apportionment". According to Mr. Jayakar, a portion of the products of the factory is apportioned for thecontracts undertaken by the company and, therefore, the persons employed on the work of carrying out thecontracts would fall within the inclusive definition of the word "employee" given in(9) of section 2. We are, however, confining ourselves to the facts of this case only. The company, as already noted, was carrying on business ofsince about 1940 in Bombay and, at that time, they were purchasing the required materials from outside. That continued till August 1961. In August 1961, the company started a factory for manufacturing certain products which included articles required for waterproofing. But they manufactured many more articles and only six out of the 32 articles produced by them were required forwork. This represented only 13 per cent of the total production undertaken by the factory. Even then all the material required forwhich was produced by the factory was not utilized by the company forcontracts and a portion of the material produced by the factory was sold outside. Even for carrying out thecontracts, besides the six articles produced by the company, other articles were required and they were purchased form outside. On these facts, it can not be said that the persons employed in the work ofcontacts were so employed on a work connected with the distribution (or apportionment) of the products of the factory.It may be noted that the inclusive definition of "employee" in(9) of section 2 was introduced by section 2 of Act No. XLIV of 1966 with effect from June 17, 1967. Prior to that, the definition of "employee" was confined to Clauses (i), (ii) and (iii) of(9) of section 2. Before the inclusive definition was inserted by Act No. XLIV of 1966, a question arose before a Division Bench of this Court in (Employees State Insurance Corporation v. C.H. Raman)1, 1957(1) L.L.J. 267 that where the work of the factory was production of finished articles and it was not its work to sell the products of the factory, could it be said that the work of selling the products of the factory was incidental to or connected with the work of the factory where the finished products were sold within the definition of "employee" in section 2(9) of the E.S.I. Act. It was held in that case that before a person can be said to be an "employee" within the meaning of section 2(9) of the Act, it has to be shown that he has been employed on any work of, or incidental or preliminary to, or connected with the work of the factory. Where it is admitted that the work of the factory ends with production of finished articles and it was not its work to sell the products of the factory, it cannot be held that the work of selling the products of the factory is incidental to, or connected with, the work of the factory. Where the factory and the administrative office maintain two separate musters,and two separate accounts and the person concerned is employed in the administrative office and his work consists mainly of taking down dictation from the manager and other officers and typing letters, it must be held that such a person is not an "employee" within the meaning of the Act. It appears that the legislature wanted to give benefit of E.S.I. Act also to persons employed for wages on work connected with the administration of a factory and, therefore, by Act No. XLIV of 1966, the inclusive definition, as mentioned above, was inserted. The result of this insertion is that the definition of "employee" now includes any person employed for wages on any work connected with the administration of a factory or an establishment or any part, department or branch thereof as also with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment. We have, however, shown on the facts of the present case that the persons employed by thefor wages on its work of water proofing contracts cannot fall even within the inclusive definition of "employee" given in section 2(9), as they cannot be said to be persons employed on work connected with the distribution or sale of the products of the factory. In this view of the matter, the view taken by the Employees Insurance Court is correct and this appeal must fail. | 0 | 2,131 | 1,536 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
the factory, some other items are also requires for carrying out the water-proofing contracts and these materials, which are not produced by the factory, are purchased from outside in bulk. It is in the background of these facts that we have to decide whether the Mistries, supervisors and casual labourers whom the company engages for wages for its water-proofing contracts outside the factory can be said to be persons employed on any work connected with the distribution or sale of the products of the factory. In our view, they do not fall within the inclusive definition as mentioned above. These persons are employed, although for wages, mainly for carrying out the water-proofing contracts and they cannot be said to be employed for the work of distribution or sale of the products of the factory. It is only incidentally that for carrying out the contracts of water-proofing work they utilise some of the products manufactured by the factory and in this way, a part of the products of the factory is distributed or can be said to be sold in the process of carrying out the water-proofing contracts. But that cannot mean that they are persons employed for the work connected with the distribution or sale of the products of the factory.Mr. Jayakar for the appellants has invited our attention to the dictionary meaning of the word "distribution" which occurs in the inclusive definition referred to above and that meaning is "apportionment". According to Mr. Jayakar, a portion of the products of the factory is apportioned for the water-proofing contracts undertaken by the company and, therefore, the persons employed on the work of carrying out the water-proofing contracts would fall within the inclusive definition of the word "employee" given in sub-section (9) of section 2. We are, however, confining ourselves to the facts of this case only. The company, as already noted, was carrying on business of water-proofing since about 1940 in Bombay and, at that time, they were purchasing the required materials from outside. That continued till August 1961. In August 1961, the company started a factory for manufacturing certain products which included articles required for waterproofing. But they manufactured many more articles and only six out of the 32 articles produced by them were required for water-proofing work. This represented only 13 per cent of the total production undertaken by the factory. Even then all the material required for water-proofing which was produced by the factory was not utilized by the company for water-proofing contracts and a portion of the material produced by the factory was sold outside. Even for carrying out the water-proofing contracts, besides the six articles produced by the company, other articles were required and they were purchased form outside. On these facts, it can not be said that the persons employed in the work of water-proofing contacts were so employed on a work connected with the distribution (or apportionment) of the products of the factory.It may be noted that the inclusive definition of "employee" in sub-section (9) of section 2 was introduced by section 2 of Act No. XLIV of 1966 with effect from June 17, 1967. Prior to that, the definition of "employee" was confined to Clauses (i), (ii) and (iii) of sub-section (9) of section 2. Before the inclusive definition was inserted by Act No. XLIV of 1966, a question arose before a Division Bench of this Court in (Employees State Insurance Corporation v. C.H. Raman)1, 1957(1) L.L.J. 267 that where the work of the factory was production of finished articles and it was not its work to sell the products of the factory, could it be said that the work of selling the products of the factory was incidental to or connected with the work of the factory where the finished products were sold within the definition of "employee" in section 2(9) of the E.S.I. Act. It was held in that case that before a person can be said to be an "employee" within the meaning of section 2(9) of the Act, it has to be shown that he has been employed on any work of, or incidental or preliminary to, or connected with the work of the factory. Where it is admitted that the work of the factory ends with production of finished articles and it was not its work to sell the products of the factory, it cannot be held that the work of selling the products of the factory is incidental to, or connected with, the work of the factory. Where the factory and the administrative office maintain two separate musters, wage-rolls and two separate accounts and the person concerned is employed in the administrative office and his work consists mainly of taking down dictation from the manager and other officers and typing letters, it must be held that such a person is not an "employee" within the meaning of the Act. It appears that the legislature wanted to give benefit of E.S.I. Act also to persons employed for wages on work connected with the administration of a factory and, therefore, by Act No. XLIV of 1966, the inclusive definition, as mentioned above, was inserted. The result of this insertion is that the definition of "employee" now includes any person employed for wages on any work connected with the administration of a factory or an establishment or any part, department or branch thereof as also with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment. We have, however, shown on the facts of the present case that the persons employed by the respondent-company for wages on its work of water proofing contracts cannot fall even within the inclusive definition of "employee" given in section 2(9), as they cannot be said to be persons employed on work connected with the distribution or sale of the products of the factory. In this view of the matter, the view taken by the Employees Insurance Court is correct and this appeal must fail.
### Response:
0
### Explanation:
the factory is utilised for thecontracts undertaken by the company and a portion of thematerials produced by the factory is sold outside. It is also his statement that besides the six items which are produced by the factory, some other items are also requires for carrying out thecontracts and these materials, which are not produced by the factory, are purchased from outside in bulk. It is in the background of these facts that we have to decide whether the Mistries, supervisors and casual labourers whom the company engages for wages for itscontracts outside the factory can be said to be persons employed on any work connected with the distribution or sale of the products of the factory. In our view, they do not fall within the inclusive definition as mentioned above. These persons are employed, although for wages, mainly for carrying out thecontracts and they cannot be said to be employed for the work of distribution or sale of the products of the factory. It is only incidentally that for carrying out the contracts ofwork they utilise some of the products manufactured by the factory and in this way, a part of the products of the factory is distributed or can be said to be sold in the process of carrying out thecontracts. But that cannot mean that they are persons employed for the work connected with the distribution or sale of the products of the factory.Mr. Jayakar for the appellants has invited our attention to the dictionary meaning of the word "distribution" which occurs in the inclusive definition referred to above and that meaning is "apportionment". According to Mr. Jayakar, a portion of the products of the factory is apportioned for thecontracts undertaken by the company and, therefore, the persons employed on the work of carrying out thecontracts would fall within the inclusive definition of the word "employee" given in(9) of section 2. We are, however, confining ourselves to the facts of this case only. The company, as already noted, was carrying on business ofsince about 1940 in Bombay and, at that time, they were purchasing the required materials from outside. That continued till August 1961. In August 1961, the company started a factory for manufacturing certain products which included articles required for waterproofing. But they manufactured many more articles and only six out of the 32 articles produced by them were required forwork. This represented only 13 per cent of the total production undertaken by the factory. Even then all the material required forwhich was produced by the factory was not utilized by the company forcontracts and a portion of the material produced by the factory was sold outside. Even for carrying out thecontracts, besides the six articles produced by the company, other articles were required and they were purchased form outside. On these facts, it can not be said that the persons employed in the work ofcontacts were so employed on a work connected with the distribution (or apportionment) of the products of the factory.It may be noted that the inclusive definition of "employee" in(9) of section 2 was introduced by section 2 of Act No. XLIV of 1966 with effect from June 17, 1967. Prior to that, the definition of "employee" was confined to Clauses (i), (ii) and (iii) of(9) of section 2. Before the inclusive definition was inserted by Act No. XLIV of 1966, a question arose before a Division Bench of this Court in (Employees State Insurance Corporation v. C.H. Raman)1, 1957(1) L.L.J. 267 that where the work of the factory was production of finished articles and it was not its work to sell the products of the factory, could it be said that the work of selling the products of the factory was incidental to or connected with the work of the factory where the finished products were sold within the definition of "employee" in section 2(9) of the E.S.I. Act. It was held in that case that before a person can be said to be an "employee" within the meaning of section 2(9) of the Act, it has to be shown that he has been employed on any work of, or incidental or preliminary to, or connected with the work of the factory. Where it is admitted that the work of the factory ends with production of finished articles and it was not its work to sell the products of the factory, it cannot be held that the work of selling the products of the factory is incidental to, or connected with, the work of the factory. Where the factory and the administrative office maintain two separate musters,and two separate accounts and the person concerned is employed in the administrative office and his work consists mainly of taking down dictation from the manager and other officers and typing letters, it must be held that such a person is not an "employee" within the meaning of the Act. It appears that the legislature wanted to give benefit of E.S.I. Act also to persons employed for wages on work connected with the administration of a factory and, therefore, by Act No. XLIV of 1966, the inclusive definition, as mentioned above, was inserted. The result of this insertion is that the definition of "employee" now includes any person employed for wages on any work connected with the administration of a factory or an establishment or any part, department or branch thereof as also with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment. We have, however, shown on the facts of the present case that the persons employed by thefor wages on its work of water proofing contracts cannot fall even within the inclusive definition of "employee" given in section 2(9), as they cannot be said to be persons employed on work connected with the distribution or sale of the products of the factory. In this view of the matter, the view taken by the Employees Insurance Court is correct and this appeal must fail.
|
Sarat Chandra Roy Vs. Harak Chand Damani & Another | Hegde, J. 1. This appeal by special leave arises from insolvency proceedings initiated by the first respondent Petitioning Creditor on the original side of the Calcutta High Court against the appellant. No other creditor had either joined the proceedings or was a party thereto. Excepting the fact the petitioner alleged that some other debts were also due from the insolvent there is no. satisfactory proof about those debts. At any rate, there is no. satisfactory proof to show that the insolvent was unable to discharge the debts due from him. The prayer for adjudicating the appellant as an insolvent had primarily proceeded on the basis of the failure of the appellant to discharge the decree debt due to the petitioning creditor. At the hearing of the appeal the appellate Bench of the High Court determined on September 23, 1964 that the balance amount due from the insolvent to the petitioning creditor was Rs 46, 623-49 paise. The Court directed the appellant that if he paid to the petitioning creditor Rs.28, 186.40 p. by 2nd December, 1964 and the balance with interest by June 30, 1963, the order of adjudication would be set aside. On the same day i.e. September 23, 1964 the appellant paid to the petitioning creditor Rupees 28, 186.49 paise. The balance amount was not paid within the time fixed. For that reason the appellate court confirmed the adjudication of the insolvent by its judgement dated July 12, 1966. Thereafter on July 30, 1966 the appellants solicitors sent a cheque for Rs 20, 466.06 paise to the solicitors of the petitioning creditors in full satisfaction of the balance due to the petitioning creditor. That cheque was returned by the solicitors of the petitioning creditor on August 1, 1966 on the sole ground that the amount in question had not been paid within the time fixed by the court. There was no. justification in doing so. After the tender in question the appellant applied to the appellate court to review its order. That application was dismissed mainly on the ground that the petitioning creditor opposed the same and that there were differences between the two. We fail to see how the creditor was interested in the adjudication of the appellant as an insolvent even after the entire amount due to him was tendered. The court was not justified in maintaining the adjudication of the appellant under the circumstances of the case. From the records we are satisfied that there was no. justification for initiating the insolvency proceedings in question. Non-payment of a decree promptly by itself is no. ground to adjudicating a person insolvent. Appellant appears to be a person of substantial means. In this case insolvency proceedings appear to have been initiated as an alternative to execution proceedings. 2. We are informed that at the time of the application for certificate before the High Court the insolvent had given a cash security of Rupees 1, 32, 311.00. As mentioned earlier the solicitors for the petitioning creditor had not accepted the cheque for Rupees 20, 466.06 paise. That being so, that amount yet remains to be paid to the petitioning creditor. In addition the insolvent has also to pay a sum of Rs, 2, 500/- as costs as agreed to by him under his letter dated September 23, 1964. | 1[ds]The Court directed the appellant that if he paid to the petitioning creditor Rs.28, 186.40 p. by 2nd December, 1964 and the balance with interest by June 30, 1963, the order of adjudication would be set aside. On the same day i.e. September 23, 1964 the appellant paid to the petitioning creditor Rupees 28, 186.49 paise. The balance amount was not paid within the time fixed. For that reason the appellate court confirmed the adjudication of the insolvent by its judgement dated July 12, 1966. Thereafter on July 30, 1966 the appellants solicitors sent a cheque for Rs 20, 466.06 paise to the solicitors of the petitioning creditors in full satisfaction of the balance due to the petitioning creditor.That cheque was returned by the solicitors of the petitioning creditor on August 1, 1966 on the sole ground that the amount in question had not been paid within the time fixed by the court. There was no. justification in doing so. After the tender in question the appellant applied to the appellate court to review its order. That application was dismissed mainly on the ground that the petitioning creditor opposed the same and that there were differences between the two. We fail to see how the creditor was interested in the adjudication of the appellant as an insolvent even after the entire amount due to him was tendered. The court was not justified in maintaining the adjudication of the appellant under the circumstances of the case. From the records we are satisfied that there was no. justification for initiating the insolvency proceedings in question.t of a decree promptly by itself is no. ground to adjudicating a person insolvent. Appellant appears to be a person of substantial means. In this case insolvency proceedings appear to have been initiated as an alternative to execution proceedings2. We are informed that at the time of the application for certificate before the High Court the insolvent had given a cash security of Rupees 1, 32, 311.00. As mentioned earlier the solicitors for the petitioning creditor had not accepted the cheque for Rupees 20, 466.06 paise. That being so, that amount yet remains to be paid to the petitioning creditor. In addition the insolvent has also to pay a sum of Rs, 2, 500/as costs as agreed to by him under his letter dated September 23, 1964. | 1 | 605 | 432 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
Hegde, J. 1. This appeal by special leave arises from insolvency proceedings initiated by the first respondent Petitioning Creditor on the original side of the Calcutta High Court against the appellant. No other creditor had either joined the proceedings or was a party thereto. Excepting the fact the petitioner alleged that some other debts were also due from the insolvent there is no. satisfactory proof about those debts. At any rate, there is no. satisfactory proof to show that the insolvent was unable to discharge the debts due from him. The prayer for adjudicating the appellant as an insolvent had primarily proceeded on the basis of the failure of the appellant to discharge the decree debt due to the petitioning creditor. At the hearing of the appeal the appellate Bench of the High Court determined on September 23, 1964 that the balance amount due from the insolvent to the petitioning creditor was Rs 46, 623-49 paise. The Court directed the appellant that if he paid to the petitioning creditor Rs.28, 186.40 p. by 2nd December, 1964 and the balance with interest by June 30, 1963, the order of adjudication would be set aside. On the same day i.e. September 23, 1964 the appellant paid to the petitioning creditor Rupees 28, 186.49 paise. The balance amount was not paid within the time fixed. For that reason the appellate court confirmed the adjudication of the insolvent by its judgement dated July 12, 1966. Thereafter on July 30, 1966 the appellants solicitors sent a cheque for Rs 20, 466.06 paise to the solicitors of the petitioning creditors in full satisfaction of the balance due to the petitioning creditor. That cheque was returned by the solicitors of the petitioning creditor on August 1, 1966 on the sole ground that the amount in question had not been paid within the time fixed by the court. There was no. justification in doing so. After the tender in question the appellant applied to the appellate court to review its order. That application was dismissed mainly on the ground that the petitioning creditor opposed the same and that there were differences between the two. We fail to see how the creditor was interested in the adjudication of the appellant as an insolvent even after the entire amount due to him was tendered. The court was not justified in maintaining the adjudication of the appellant under the circumstances of the case. From the records we are satisfied that there was no. justification for initiating the insolvency proceedings in question. Non-payment of a decree promptly by itself is no. ground to adjudicating a person insolvent. Appellant appears to be a person of substantial means. In this case insolvency proceedings appear to have been initiated as an alternative to execution proceedings. 2. We are informed that at the time of the application for certificate before the High Court the insolvent had given a cash security of Rupees 1, 32, 311.00. As mentioned earlier the solicitors for the petitioning creditor had not accepted the cheque for Rupees 20, 466.06 paise. That being so, that amount yet remains to be paid to the petitioning creditor. In addition the insolvent has also to pay a sum of Rs, 2, 500/- as costs as agreed to by him under his letter dated September 23, 1964.
### Response:
1
### Explanation:
The Court directed the appellant that if he paid to the petitioning creditor Rs.28, 186.40 p. by 2nd December, 1964 and the balance with interest by June 30, 1963, the order of adjudication would be set aside. On the same day i.e. September 23, 1964 the appellant paid to the petitioning creditor Rupees 28, 186.49 paise. The balance amount was not paid within the time fixed. For that reason the appellate court confirmed the adjudication of the insolvent by its judgement dated July 12, 1966. Thereafter on July 30, 1966 the appellants solicitors sent a cheque for Rs 20, 466.06 paise to the solicitors of the petitioning creditors in full satisfaction of the balance due to the petitioning creditor.That cheque was returned by the solicitors of the petitioning creditor on August 1, 1966 on the sole ground that the amount in question had not been paid within the time fixed by the court. There was no. justification in doing so. After the tender in question the appellant applied to the appellate court to review its order. That application was dismissed mainly on the ground that the petitioning creditor opposed the same and that there were differences between the two. We fail to see how the creditor was interested in the adjudication of the appellant as an insolvent even after the entire amount due to him was tendered. The court was not justified in maintaining the adjudication of the appellant under the circumstances of the case. From the records we are satisfied that there was no. justification for initiating the insolvency proceedings in question.t of a decree promptly by itself is no. ground to adjudicating a person insolvent. Appellant appears to be a person of substantial means. In this case insolvency proceedings appear to have been initiated as an alternative to execution proceedings2. We are informed that at the time of the application for certificate before the High Court the insolvent had given a cash security of Rupees 1, 32, 311.00. As mentioned earlier the solicitors for the petitioning creditor had not accepted the cheque for Rupees 20, 466.06 paise. That being so, that amount yet remains to be paid to the petitioning creditor. In addition the insolvent has also to pay a sum of Rs, 2, 500/as costs as agreed to by him under his letter dated September 23, 1964.
|
National Insurance Co. Ltd Vs. Rekhaben and Ors | must have a nexus or relation with the accidental injury or death, in order to be deductible from the amount of compensation. Hence, this Court refused to deduct the said amount from the amount of compensation receivable on account of the motor accident.The facts of the case in Vimal Kanwar and Ors. v. Kishore Dan & Ors. (2013) 7 SCC 476. are similar to the facts of the cases in hand. The contention in the said case was that the amount of salary receivable by the claimant appointed on compassionate ground was deductible from the amount of compensation which the claimant was entitled to receive Under Section 168 of the Motor Vehicles Act, 1988. This Court rejected the said contention and observed as follows:21. "Compassionate appointment" can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependants, one of the dependants may request for compassionate appointment to maintain the family of the deceased employee who dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of ones death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependants may be entitled for compassionate appointment but that cannot be termed as "pecuniary advantage" that comes under the periphery of the Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.15. In the case of Reliance General Insurance Co. Limited v. Shashi Sharma & Ors. (2016) 9 SCC 627 , this Court permitted the deduction of the amount receivable by the claimant under the scheme of the 2006 Rules framed by the State of Haryana which provided a grant of compassionate assistance by way of ex gratia financial assistance on compassionate grounds to the members of the family of a deceased government employee who died while in service/missing government employee.16. The financial assistance was a sum equal to the pay and other allowances that were last drawn by the deceased employee in the normal course without raising a specific claim for periods up to 15 years from the date of the death of the employee if the employee had not attained the age of 35 years, and lesser periods of 12 years and 7 years depending on the age of the employee at the time of death. The family was eligible to receive family pension only after the period of financial assistance was completed. The Court held that ex gratia financial assistance was liable to be deducted on the ground that the claimant was eligible to it on account of the same event in which the compensation was claimed under the Motor Vehicles Act, 1988, i.e. the death of the employee.17. This case seems to superficially support the case of the Appellant Insurance Company before us. However, on a deeper consideration, it does not. In Reliance General Insurance (supra), the family of the deceased employee became entitled to financial assistance of a sum equal to the pay and other allowances that were last drawn by the deceased for a certain period after his death, even without raising a specific claim. In other words the family became entitled to the pay & allowances that the deceased would have received if he would have not died, for a certain period of time. This financial scheme resulted in paying the family the same pay and allowances for a certain period and thus in effect clearly offsetting the loss of income on account of the death of the deceased. Thus, the amount of financial assistance had to be excluded from the loss of income, as to that extent there was no loss of income, and the compensation receivable by the family had to be reduced from the amount receivable under the Motor Vehicles Act.18. In the present cases, the claimants were offered compassionate employment. The claimants were not offered any sum of money equal to the income of the deceased. In fact, they were not offered any sum of money at all. They were offered employment and the money they receive in the form of their salary, would be earned from such employment. The loss of income in such cases cannot be said to be set off because the claimants would be earning their living. Therefore, we are of the view that the amount earned by the claimants from compassionate appointments cannot be deducted from the quantum of compensation receivable by them under the Act.19. In the cases before us, compensation is claimed from the owner of the offending vehicle who is different from the employer who has offered employment on compassionate grounds to the dependants of the deceased/injured. The source from which compensation on account of the accident is claimed and the source from which the compassionate employment is offered, are completely separate and there is no co-relation between these two sources. Since the tortfeasor has not offered the compassionate appointment, we are of the view that an amount which a claimant earns by his labour or by offering his services, whether by reason of compassionate appointment or otherwise is not liable to be deducted from the compensation which the claimant is entitled to receive from a tortfeasor under the Act. In such a situation, we are of the view that the financial benefit of the compassionate employment is not liable to be deducted at all from the compensation amount which is liable to be paid either by the owner/the driver of the offending vehicle or the insurer. | 0[ds]In the facts and circumstances of the case, this Court took the view that the salary which flowed from the compassionate appointment offered by the tortfeasor, was liable to be deducted from the compensation which was payable by the same employer in his capacity as the owner of the offending vehicle. We find this decision as being of no assistance to the Appellant in the cases before us. In the present cases, the owner of the offending vehicle is not the employer who offered the compassionate appointment. As observed earlier, it is difficult to see how the owner can contend that the compensation which he is liable to pay for causing the death or disability should be reduced because of compassionate employment offered by another. In any case, it is difficult to determine how much the person offered compassionate appointment would earn over the period of employment which is not certain, and deduct that amount from the compensation17. This case seems to superficially support the case of the Appellant Insurance Company before us. However, on a deeper consideration, it does not. In Reliance General Insurance (supra), the family of the deceased employee became entitled to financial assistance of a sum equal to the pay and other allowances that were last drawn by the deceased for a certain period after his death, even without raising a specific claim. In other words the family became entitled to the pay & allowances that the deceased would have received if he would have not died, for a certain period of time. This financial scheme resulted in paying the family the same pay and allowances for a certain period and thus in effect clearly offsetting the loss of income on account of the death of the deceased. Thus, the amount of financial assistance had to be excluded from the loss of income, as to that extent there was no loss of income, and the compensation receivable by the family had to be reduced from the amount receivable under the Motor Vehicles Act18. In the present cases, the claimants were offered compassionate employment. The claimants were not offered any sum of money equal to the income of the deceased. In fact, they were not offered any sum of money at all. They were offered employment and the money they receive in the form of their salary, would be earned from such employment. The loss of income in such cases cannot be said to be set off because the claimants would be earning their living. Therefore, we are of the view that the amount earned by the claimants from compassionate appointments cannot be deducted from the quantum of compensation receivable by them under the Act19. In the cases before us, compensation is claimed from the owner of the offending vehicle who is different from the employer who has offered employment on compassionate grounds to the dependants of the deceased/injured. The source from which compensation on account of the accident is claimed and the source from which the compassionate employment is offered, are completely separate and there is no co-relation between these two sources. Since the tortfeasor has not offered the compassionate appointment, we are of the view that an amount which a claimant earns by his labour or by offering his services, whether by reason of compassionate appointment or otherwise is not liable to be deducted from the compensation which the claimant is entitled to receive from a tortfeasor under the Act. In such a situation, we are of the view that the financial benefit of the compassionate employment is not liable to be deducted at all from the compensation amount which is liable to be paid either by the owner/the driver of the offending vehicle or the insurer. | 0 | 3,517 | 674 | ### Instruction:
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must have a nexus or relation with the accidental injury or death, in order to be deductible from the amount of compensation. Hence, this Court refused to deduct the said amount from the amount of compensation receivable on account of the motor accident.The facts of the case in Vimal Kanwar and Ors. v. Kishore Dan & Ors. (2013) 7 SCC 476. are similar to the facts of the cases in hand. The contention in the said case was that the amount of salary receivable by the claimant appointed on compassionate ground was deductible from the amount of compensation which the claimant was entitled to receive Under Section 168 of the Motor Vehicles Act, 1988. This Court rejected the said contention and observed as follows:21. "Compassionate appointment" can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependants, one of the dependants may request for compassionate appointment to maintain the family of the deceased employee who dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of ones death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependants may be entitled for compassionate appointment but that cannot be termed as "pecuniary advantage" that comes under the periphery of the Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.15. In the case of Reliance General Insurance Co. Limited v. Shashi Sharma & Ors. (2016) 9 SCC 627 , this Court permitted the deduction of the amount receivable by the claimant under the scheme of the 2006 Rules framed by the State of Haryana which provided a grant of compassionate assistance by way of ex gratia financial assistance on compassionate grounds to the members of the family of a deceased government employee who died while in service/missing government employee.16. The financial assistance was a sum equal to the pay and other allowances that were last drawn by the deceased employee in the normal course without raising a specific claim for periods up to 15 years from the date of the death of the employee if the employee had not attained the age of 35 years, and lesser periods of 12 years and 7 years depending on the age of the employee at the time of death. The family was eligible to receive family pension only after the period of financial assistance was completed. The Court held that ex gratia financial assistance was liable to be deducted on the ground that the claimant was eligible to it on account of the same event in which the compensation was claimed under the Motor Vehicles Act, 1988, i.e. the death of the employee.17. This case seems to superficially support the case of the Appellant Insurance Company before us. However, on a deeper consideration, it does not. In Reliance General Insurance (supra), the family of the deceased employee became entitled to financial assistance of a sum equal to the pay and other allowances that were last drawn by the deceased for a certain period after his death, even without raising a specific claim. In other words the family became entitled to the pay & allowances that the deceased would have received if he would have not died, for a certain period of time. This financial scheme resulted in paying the family the same pay and allowances for a certain period and thus in effect clearly offsetting the loss of income on account of the death of the deceased. Thus, the amount of financial assistance had to be excluded from the loss of income, as to that extent there was no loss of income, and the compensation receivable by the family had to be reduced from the amount receivable under the Motor Vehicles Act.18. In the present cases, the claimants were offered compassionate employment. The claimants were not offered any sum of money equal to the income of the deceased. In fact, they were not offered any sum of money at all. They were offered employment and the money they receive in the form of their salary, would be earned from such employment. The loss of income in such cases cannot be said to be set off because the claimants would be earning their living. Therefore, we are of the view that the amount earned by the claimants from compassionate appointments cannot be deducted from the quantum of compensation receivable by them under the Act.19. In the cases before us, compensation is claimed from the owner of the offending vehicle who is different from the employer who has offered employment on compassionate grounds to the dependants of the deceased/injured. The source from which compensation on account of the accident is claimed and the source from which the compassionate employment is offered, are completely separate and there is no co-relation between these two sources. Since the tortfeasor has not offered the compassionate appointment, we are of the view that an amount which a claimant earns by his labour or by offering his services, whether by reason of compassionate appointment or otherwise is not liable to be deducted from the compensation which the claimant is entitled to receive from a tortfeasor under the Act. In such a situation, we are of the view that the financial benefit of the compassionate employment is not liable to be deducted at all from the compensation amount which is liable to be paid either by the owner/the driver of the offending vehicle or the insurer.
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In the facts and circumstances of the case, this Court took the view that the salary which flowed from the compassionate appointment offered by the tortfeasor, was liable to be deducted from the compensation which was payable by the same employer in his capacity as the owner of the offending vehicle. We find this decision as being of no assistance to the Appellant in the cases before us. In the present cases, the owner of the offending vehicle is not the employer who offered the compassionate appointment. As observed earlier, it is difficult to see how the owner can contend that the compensation which he is liable to pay for causing the death or disability should be reduced because of compassionate employment offered by another. In any case, it is difficult to determine how much the person offered compassionate appointment would earn over the period of employment which is not certain, and deduct that amount from the compensation17. This case seems to superficially support the case of the Appellant Insurance Company before us. However, on a deeper consideration, it does not. In Reliance General Insurance (supra), the family of the deceased employee became entitled to financial assistance of a sum equal to the pay and other allowances that were last drawn by the deceased for a certain period after his death, even without raising a specific claim. In other words the family became entitled to the pay & allowances that the deceased would have received if he would have not died, for a certain period of time. This financial scheme resulted in paying the family the same pay and allowances for a certain period and thus in effect clearly offsetting the loss of income on account of the death of the deceased. Thus, the amount of financial assistance had to be excluded from the loss of income, as to that extent there was no loss of income, and the compensation receivable by the family had to be reduced from the amount receivable under the Motor Vehicles Act18. In the present cases, the claimants were offered compassionate employment. The claimants were not offered any sum of money equal to the income of the deceased. In fact, they were not offered any sum of money at all. They were offered employment and the money they receive in the form of their salary, would be earned from such employment. The loss of income in such cases cannot be said to be set off because the claimants would be earning their living. Therefore, we are of the view that the amount earned by the claimants from compassionate appointments cannot be deducted from the quantum of compensation receivable by them under the Act19. In the cases before us, compensation is claimed from the owner of the offending vehicle who is different from the employer who has offered employment on compassionate grounds to the dependants of the deceased/injured. The source from which compensation on account of the accident is claimed and the source from which the compassionate employment is offered, are completely separate and there is no co-relation between these two sources. Since the tortfeasor has not offered the compassionate appointment, we are of the view that an amount which a claimant earns by his labour or by offering his services, whether by reason of compassionate appointment or otherwise is not liable to be deducted from the compensation which the claimant is entitled to receive from a tortfeasor under the Act. In such a situation, we are of the view that the financial benefit of the compassionate employment is not liable to be deducted at all from the compensation amount which is liable to be paid either by the owner/the driver of the offending vehicle or the insurer.
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Raja Ganga Pratap Singh Vs. The Allahabad Bank Ltd., Lucknow | the impugned portion of the definition infringed Art. 14 of the Constitution as it made an arbitrary distinction between several classes of debtors and was therefore invalid, but he held that it was not necessary for the disposal of the case to decide such question of invalidity because even if it was decided in favour of the appellant, the result would be to exclude the entire definition from the Act as the offending portion was not severable from the rest and the appellant would, therefore, be in any event left without the protection of the Act. In this view of the matter he held that the proviso to S. 113 of the Code did not apply and dismissed the application under it. 3. The appellant then made an application to the High Court at Allahabad for a revision of the order of the learned Civil Judge. He at the same time made another application to the High Court under Art. 228 of the Constitution. That article is in these terms. "If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may- (a) either dispose of the case itself, or (b) determine the said question of law and return the case of the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment." The appellant in the latter application prayed that the High Court might be pleased to withdraw the case and either dispose it of itself, or determine the question of the validity of the definition of debt in the Act and return the case to the court of the Civil Judge, Sitapur, for final disposal in accordance with such determination. 4. The High Court disposed of both the applications by one judgment. It held that there was no dispute as to the constitutional principle which was clear, namely, that every citizen, was entitled to the equal protection of the laws and that any enactment which infringed that principle, is to that extent void, and that the only dispute was whether the impugned portion of the definition of a "debt" in the Act was severable from the rest and that was not a question of the interpretation of any provision of the Constitution but one of the construction of the Act itself. The High Court also held that even if any question of the interpretation of the Constitution arose, a determination of that question was not necessary for the disposal of the case. In this view of the matter the High Court dismissed the application in revision and also that under Art. 228. From this judgment the present appeal has been filed. 5. It seems clear to us that the question raised by the appellant in this case comes within the proviso to S. 113 of the Code as also Art. 228 of the Constitution. The question contemplated by the proviso to S. 113 of the Code is as to the validity of an Act or of a provision in it while Art. 228 of the Constitution has in view a question as to the interpretation of the Constitution. Now the question raised in the present case is as to the validity of a provision in the Zamindars Debt Reduction Act. This question is, however, also a question as to the interpretation of the Constitution, for the validity of the provision is challenged on the ground that it contravenes an article of the Constitution. 6. The point that really arises in this appeal is whether it is necessary for the disposal of the case to decide the question of the validity of a portion of the definition of a debt in the Act. All other conditions necessary for an order being made under the proviso to S. 113 of the Code or Art. 228 of the Constitution exist and as to this there is no serious dispute. It is not necessary for us therefore to discuss these conditions. 7. The courts below held that in either view of the question of the validity of the impugned portion of the definition of a "debt" the appellant would be without the remedy which he sought, because that portion of the definition was not severable from the rest, and therefore it was not necessary to decide that question to dispose of the case.We are unable to agree with this view. The question of the validity of the definition in so far as it excluded certain debts having been raised and pressed by the appellant, it had to be decided by the court. Without a decision of that question the case could not be disposed of. The fact that in the view of the court the impugned part of the definition was not severable from the rest and therefore in any view of the question as to the validity of the impugned part, the appellant would not get any relief, did not alter the position. The question as to the severability of the impugned part of the definition from the rest would arise only after it had been decided that the impugned part was invalid and so to be able to say that the impugned part of the definition was not severable from the rest, it had first to be held that that part was invalid. It could not be said that as the impugned part was not severable from the rest it was not necessary for the disposal of the case to decide the question of the validity of the impugned part. We, therefore, hold that it is necessary to decide the question of the validity of the impugned part of the definition to dispose of the case. | 1[ds]7. The courts below held that in either view of the question of the validity of the impugned portion of the definition of a "debt" the appellant would be without the remedy which he sought, because that portion of the definition was not severable from the rest, and therefore it was not necessary to decide that question to dispose of the case.We are unable to agree with this view. The question of the validity of the definition in so far as it excluded certain debts having been raised and pressed by the appellant, it had to be decided by the court. Without a decision of that question the case could not be disposed of. The fact that in the view of the court the impugned part of the definition was not severable from the rest and therefore in any view of the question as to the validity of the impugned part, the appellant would not get any relief, did not alter the position. The question as to the severability of the impugned part of the definition from the rest would arise only after it had been decided that the impugned part was invalid and so to be able to say that the impugned part of the definition was not severable from the rest, it had first to be held that that part was invalid. It could not be said that as the impugned part was not severable from the rest it was not necessary for the disposal of the case to decide the question of the validity of the impugned part. We, therefore, hold that it is necessary to decide the question of the validity of the impugned part of the definition to dispose of the case. | 1 | 1,714 | 309 | ### Instruction:
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the impugned portion of the definition infringed Art. 14 of the Constitution as it made an arbitrary distinction between several classes of debtors and was therefore invalid, but he held that it was not necessary for the disposal of the case to decide such question of invalidity because even if it was decided in favour of the appellant, the result would be to exclude the entire definition from the Act as the offending portion was not severable from the rest and the appellant would, therefore, be in any event left without the protection of the Act. In this view of the matter he held that the proviso to S. 113 of the Code did not apply and dismissed the application under it. 3. The appellant then made an application to the High Court at Allahabad for a revision of the order of the learned Civil Judge. He at the same time made another application to the High Court under Art. 228 of the Constitution. That article is in these terms. "If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may- (a) either dispose of the case itself, or (b) determine the said question of law and return the case of the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment." The appellant in the latter application prayed that the High Court might be pleased to withdraw the case and either dispose it of itself, or determine the question of the validity of the definition of debt in the Act and return the case to the court of the Civil Judge, Sitapur, for final disposal in accordance with such determination. 4. The High Court disposed of both the applications by one judgment. It held that there was no dispute as to the constitutional principle which was clear, namely, that every citizen, was entitled to the equal protection of the laws and that any enactment which infringed that principle, is to that extent void, and that the only dispute was whether the impugned portion of the definition of a "debt" in the Act was severable from the rest and that was not a question of the interpretation of any provision of the Constitution but one of the construction of the Act itself. The High Court also held that even if any question of the interpretation of the Constitution arose, a determination of that question was not necessary for the disposal of the case. In this view of the matter the High Court dismissed the application in revision and also that under Art. 228. From this judgment the present appeal has been filed. 5. It seems clear to us that the question raised by the appellant in this case comes within the proviso to S. 113 of the Code as also Art. 228 of the Constitution. The question contemplated by the proviso to S. 113 of the Code is as to the validity of an Act or of a provision in it while Art. 228 of the Constitution has in view a question as to the interpretation of the Constitution. Now the question raised in the present case is as to the validity of a provision in the Zamindars Debt Reduction Act. This question is, however, also a question as to the interpretation of the Constitution, for the validity of the provision is challenged on the ground that it contravenes an article of the Constitution. 6. The point that really arises in this appeal is whether it is necessary for the disposal of the case to decide the question of the validity of a portion of the definition of a debt in the Act. All other conditions necessary for an order being made under the proviso to S. 113 of the Code or Art. 228 of the Constitution exist and as to this there is no serious dispute. It is not necessary for us therefore to discuss these conditions. 7. The courts below held that in either view of the question of the validity of the impugned portion of the definition of a "debt" the appellant would be without the remedy which he sought, because that portion of the definition was not severable from the rest, and therefore it was not necessary to decide that question to dispose of the case.We are unable to agree with this view. The question of the validity of the definition in so far as it excluded certain debts having been raised and pressed by the appellant, it had to be decided by the court. Without a decision of that question the case could not be disposed of. The fact that in the view of the court the impugned part of the definition was not severable from the rest and therefore in any view of the question as to the validity of the impugned part, the appellant would not get any relief, did not alter the position. The question as to the severability of the impugned part of the definition from the rest would arise only after it had been decided that the impugned part was invalid and so to be able to say that the impugned part of the definition was not severable from the rest, it had first to be held that that part was invalid. It could not be said that as the impugned part was not severable from the rest it was not necessary for the disposal of the case to decide the question of the validity of the impugned part. We, therefore, hold that it is necessary to decide the question of the validity of the impugned part of the definition to dispose of the case.
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7. The courts below held that in either view of the question of the validity of the impugned portion of the definition of a "debt" the appellant would be without the remedy which he sought, because that portion of the definition was not severable from the rest, and therefore it was not necessary to decide that question to dispose of the case.We are unable to agree with this view. The question of the validity of the definition in so far as it excluded certain debts having been raised and pressed by the appellant, it had to be decided by the court. Without a decision of that question the case could not be disposed of. The fact that in the view of the court the impugned part of the definition was not severable from the rest and therefore in any view of the question as to the validity of the impugned part, the appellant would not get any relief, did not alter the position. The question as to the severability of the impugned part of the definition from the rest would arise only after it had been decided that the impugned part was invalid and so to be able to say that the impugned part of the definition was not severable from the rest, it had first to be held that that part was invalid. It could not be said that as the impugned part was not severable from the rest it was not necessary for the disposal of the case to decide the question of the validity of the impugned part. We, therefore, hold that it is necessary to decide the question of the validity of the impugned part of the definition to dispose of the case.
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Beohar Rajendra Sinha & Ors Vs. State Of M.P. & Ors | with regard to 1/5th share in nazul plots Nos. 34/3, 33 and 171/1 mentioned in the Deputy Commissioners order dated 7th May, 1948 in Revenue Case No. 9/45-46. It was argued on behalf of defendant No. 1 that there was no evidence to show that the plaintiffs were in possession of the land from 1909 to 1932, and the plaintiffs had not established their title by prescription for the statutory period of 60 years. It was contended that the High Court had no justification for holding that the plaintiffs had established the title of "Raiyat Sarkar" and the finding of the High Court was not based upon any evidence. In our opinion, the argument put forward on behalf of defendant No. 1 is well founded and must be accepted as correct. In the settlement of 1863-64 Ex. P-1 the names of Amansingh and Thakuprasad were noted in the remarks column. But the column regarding tenancy right is definitely blank. The owner is shown in the Khasra as the State "Milkiat Sarkar". In the settlement of 1890-91 Amansingh Narpatsingh is again shown in the remarks column of the khata. But the column regarding any kind of tenancy right is again blank. It is clear that in the settlements of 1860 and 1890-91 the ownership of the land is recorded as that of the Government. The possession of the plaintiffs or of their ancestors could not be attributed to ownership or tenancy right of the property. In the settlement of 1909-10, Ex. P-3 there is no entry in the remarks column showing the possession of the ancestors of the plaintiffs. It was said on behalf of the plaintiffs that no notice was given to them of the proceedings of the settlements of 1909-10. Even assuming that this allegation is correct the entries of the khasra P-3 cannot be treated to be a nullity and of no effect. In any event it was open to the plaintiffs to adduce other reliable evidence to prove their possession between the years 1909 to 1932.But the plaintiffs have failed to produce any such evidence. In the nazul settlement of 1922-23 the tank was given new plot numbers 33, 34, 35, 36, 37 and 171 and its area was recorded as 5.24 acres. In this settlement about 2 acres of land was found to be occupied by the Municipal Committee, Jabalpur. The land so found to be occupied was recorded in the possession of the Municipal Committee, Jabalpur and the remaining land was again recorded as "Milkiat Sarkar". There is no entry as regards the remaining land recording anybodys possession in the remarks column. Actually proclamations were made during this settlement and objections were invited as per Ex ID-14. A date was fixed upto 31st August, 1924 but no one came forward. The proclamation clearly recited that the vacant sites which were not in possession of anybody were not recognised as belonging to any person. It is impossible to believe that the plaintiffs or their ancestors were unaware of such a proclamation. Had they been in possession they would not have failed to make a claim. For the period after 1933-34 the plaintiffs produced account books to show that they exercised certain rights.Certain receipts were also proved but they also relate to a period after 1939. We have gone through the oral evidence produced by the plaintiffs and it appears to be unreliable. The result is that for the period 1891 till 1932 there is no reliable oral documentary evidence to prove that the plaintiffs or their ancestors had any possession over the disputed land. On the contrary the disputed land i.e., Phoota Tal was always recognised as Milkiat Sarkar and the State Government was justified in holding that the order of the Deputy Commissioner dated 7th May, 1948 should be set aside.11. In the course of the argument reference was made by Mr. Gupte to the following passage in the Central Provinces Settlement Instructions (Reprint of 1953) page 213:"In dealing with proposed method of the settlement of titles it will be convenient in order to remove all causes for misapprehension among residents, to lay emphasis on the policy of Government in making these settlements. That policy was defined in the Chief Commissioners Resolution No. 502-B-K dated the 19th October, 1917, in the Revenue and Scarcity Department, but its main principles will bear repetition.As it is not the intention of Government in making the settlement to disturb long possession, but only to obtain an accurate record of the lands which are its properly and to secure its right to any land revenue to which it may be entitled, long possession, even without clear proof of a definite grant from Government will be recognised as entitled the holder to possession. In deciding what constitutes long possession in any individual town, regard will be had to the special circumstances of the place, and while this point will be dealt with more particularly in the Deputy Commissioners report, the following general principles will ordinarily be observed:(1) all occupants who are able to prove possession to any land prior to 1891 or such later date as may be fixed for each town, either by themselves or by a valid title from a previous holder, and all occupants who can prove a definite grant or lease from Government will be recorded as entitled to hold such land as against Government (paragraph 6 of the Resolution)."On the basis of this passage it was argued that it was the duty of the settlement officer to treat the plaintiffs as having established their title because they were shown to be in possession in the settlement of the year 1890-91.We are unable to accept this argument as correct. The passage quoted above only applies to a case where the ownership of the land was unknown i. e., where possession is proved for a long time, but its original title could not be traced, and not to a case where the land is recorded as Government land. | 0[ds]On behalf of defendant No. 1 it was contended by Mr. Shroff that at the time of giving notice the plaintiff and the second defendant were joint and plaintiff No. 1 Raghubir Singh was karta of the joint family. The notice was given on 11th January, 1954 and the suit was instituted on 20th July, 1954. It was admitted that between these two dates there was a disruption of the joint family of which Raghubir Singh was a karta. It was argued that the right of the first plaintiff to represent the family had come to an end before the institution of the suit, and hence plaintiffs 2, 3 and 4 had to comply individually with the provisions of Section 80 of the Civil Procedure Code before appearing as plaintiffs in the suit.The object of the notice under Section 80, Civil Procedure Code is to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position and if that course is justified to make amends or settle the claim out of court. The Section is no doubt imperative; failure to serve notice complying with the requirements of the statute will entail dismissal of the suit. But the notice must be reasonably construed. Any unimportant error or defect cannot be permitted to be treated as an excuse for defeating a just claim. In considering whether the provisions of the statute are complied with, the Court must take into account the following matters in each case (1) whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice; (2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity, (3) whether a notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the Section; and (4) whether the suit is instituted after the expiration of two months next after notice has been served, and the plaint contains a statement that such a notice has been so delivered or left. In construing the notice the Court cannot ignore the object of the legislature, viz., to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position. If on a reasonable reading of the notice the plaintiff is shown to have given the information which the statute requires him to give, any incidental defects or irregularities should be ignored.5. In the present case, the notice was served on 11th January, 1954 by Beohar Raghubir Singh. The notice stated the cause of action arising in favour of the joint family. The requirements as to cause of action, the name, description and residence of the plaintiff were complied with and the reliefs which the plaintiff claimed were duly set out in the notice. It is true that Beohar Raghubir Singh did not expressly describe himself as the karta. But reading the contents of the notice Ex. P-8 in a reasonable manner it appears to us that the claim of Beohar Raghubir Singh was made on behalf of the joint family. It is true that the terms of Section 80 of the Civil Procedure Code must be strictly complied but that does not mean that the terms of the notice should be scrutinised in an artificial or pedantic manner.e object of the notice under Section 80, Civil Procedure Code is to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position and if that course is justified to make amends or settle the claim out of court. The Section is no doubt imperative; failure to serve notice complying with the requirements of the statute will entail dismissal of the suit. But the notice must be reasonably construed. Any unimportant error or defect cannot be permitted to be treated as an excuse for defeating a just claim. In considering whether the provisions of the statute are complied with, the Court must take into account the following matters in each case (1) whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice; (2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity, (3) whether a notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the Section; and (4) whether the suit is instituted after the expiration of two months next after notice has been served, and the plaint contains a statement that such a notice has been so delivered or left. In construing the notice the Court cannot ignore the object of the legislature, viz., to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position. If on a reasonable reading of the notice the plaintiff is shown to have given the information which the statute requires him to give, any incidental defects or irregularities should be ignored.5. In the present case, the notice was served on 11th January, 1954 by Beohar Raghubir Singh. The notice stated the cause of action arising in favour of the joint family. The requirements as to cause of action, the name, description and residence of the plaintiff were complied with and the reliefs which the plaintiff claimed were duly set out in the notice. It is true that Beohar Raghubir Singh did not expressly describe himself as the karta. But reading the contents of the notice Ex. P-8 in a reasonable manner it appears to us that the claim of Beohar Raghubir Singh was made on behalf of the joint family. It is true that the terms of Section 80 of the Civil Procedure Code must be strictly complied but that does not mean that the terms of the notice should be scrutinised in an artificial or pedantic manner.The view that we have expressed is born out by the judgment of this Court in State of Andhra Pradesh v. Gundugola Venkata Suryanarayan Garu, 1964-A SCR 945 = (AIR 1965 SC 11 ). In that case the Government of Madras applied the provisions of the Madras Estates Rent Reduction Act, 1947 to the lands in the village Mallindhapuram on the ground that the grant was of the whole village and hence an estate within the meaning of Section 3 (2) (d) of the Madras Estates Land Act,1908. The respondent and another person served a notice under Section 80 of the Code of Civil Procedure upon the Government of the State of Madras in which they challenged the above mentioned notification an asked the Government not to act upon it. Out of the two persons who gave the notice, the respondent alone file the suit. The trial Court held that the original grant was not of the entire village and was not so confirmed or recognised by the Government of Madras and as it was not an "Estate" within the meaning of S. 3 (2) (d) of the Madras Estates Land Act, the Madras Rent Reduction Act, 1947 did not apply to it. But the suit was dismissed on the ground that although two persons had given notice under Section 80 of the Code of Civil Procedure, only one person had filed the suit. The High Court agreed with the trial Court that the grant was not of an entire village but it also held that the notice was not defective and the suit was maintainable as it was a representative suit and the permission of the Court under Order 1, Rule 8 had been obtained in this case. The High Court granted the respondent the relief prayed for by him. Against the order of the High Court the appellant appealed to this Court which dismissed the appeal holding that in the circumstances of the case there was no illegality even though the notice was given by two persons and the suit was filed by only one. If the Court grants permission to one parson to institute a representative suit and if the person had served the notice under Section 80, the circumstance that another person had joined him in serving the notice but did not join him in the suit, was not a sufficient ground for regarding the suit asthe principle of these decisions has no bearing on the question presented for determination in the present case. In Vellayam Chettiars case, AIR 1947 PC 197 (supra) a notice was given by one plaintiff stating the cause of action, his plain, description and place of his residence and the relief which he claimed although the suit was instituted by him andour opinion, the argument put forward on behalf of defendant No. 1 is well founded and must be accepted as correct. In the settlement of 1863-64 Ex. P-1 the names of Amansingh and Thakuprasad were noted in the remarks column. But the column regarding tenancy right is definitely blank. The owner is shown in the Khasra as the State "Milkiat Sarkar". In the settlement of 1890-91 Amansingh Narpatsingh is again shown in the remarks column of the khata. But the column regarding any kind of tenancy right is again blank. It is clear that in the settlements of 1860 and 1890-91 the ownership of the land is recorded as that of the Government. The possession of the plaintiffs or of their ancestors could not be attributed to ownership or tenancy right of the property. In the settlement of 1909-10, Ex. P-3 there is no entry in the remarks column showing the possession of the ancestors of the plaintiffs. It was said on behalf of the plaintiffs that no notice was given to them of the proceedings of the settlements of 1909-10. Even assuming that this allegation is correct the entries of the khasra P-3 cannot be treated to be a nullity and of no effect. In any event it was open to the plaintiffs to adduce other reliable evidence to prove their possession between the years 1909 to 1932.But the plaintiffs have failed to produce any suchthe nazul settlement of 1922-23 the tank was given new plot numbers 33, 34, 35, 36, 37 and 171 and its area was recorded as 5.24 acres. In this settlement about 2 acres of land was found to be occupied by the Municipal Committee, Jabalpur. The land so found to be occupied was recorded in the possession of the Municipal Committee, Jabalpur and the remaining land was again recorded as "Milkiat Sarkar". There is no entry as regards the remaining land recording anybodys possession in the remarks column. Actually proclamations were made during this settlement and objections were invited as per Ex ID-14. A date was fixed upto 31st August, 1924 but no one came forward. The proclamation clearly recited that the vacant sites which were not in possession of anybody were not recognised as belonging to any person. It is impossible to believe that the plaintiffs or their ancestors were unaware of such a proclamation. Had they been in possession they would not have failed to make a claim. For the period after 1933-34 the plaintiffs produced account books to show that they exercised certain rights.Certain receipts were also proved but they also relate to a period after 1939. We have gone through the oral evidence produced by the plaintiffs and it appears to be unreliable. The result is that for the period 1891 till 1932 there is no reliable oral documentary evidence to prove that the plaintiffs or their ancestors had any possession over the disputed land. On the contrary the disputed land i.e., Phoota Tal was always recognised as Milkiat Sarkar and the State Government was justified in holding that the order of the Deputy Commissioner dated 7th May, 1948 should be setthe basis of this passage it was argued that it was the duty of the settlement officer to treat the plaintiffs as having established their title because they were shown to be in possession in the settlement of the year 1890-91.We are unable to accept this argument as correct. The passage quoted above only applies to a case where the ownership of the land was unknown i. e., where possession is proved for a long time, but its original title could not be traced, and not to a case where the land is recorded as Governmentare unable to accept this argument as correct. The passage quoted above only applies to a case where the ownership of the land was unknown i. e., where possession is proved for a long time, but its original title could not be traced, and not to a case where the land is recorded as Government | 0 | 4,897 | 2,301 | ### Instruction:
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with regard to 1/5th share in nazul plots Nos. 34/3, 33 and 171/1 mentioned in the Deputy Commissioners order dated 7th May, 1948 in Revenue Case No. 9/45-46. It was argued on behalf of defendant No. 1 that there was no evidence to show that the plaintiffs were in possession of the land from 1909 to 1932, and the plaintiffs had not established their title by prescription for the statutory period of 60 years. It was contended that the High Court had no justification for holding that the plaintiffs had established the title of "Raiyat Sarkar" and the finding of the High Court was not based upon any evidence. In our opinion, the argument put forward on behalf of defendant No. 1 is well founded and must be accepted as correct. In the settlement of 1863-64 Ex. P-1 the names of Amansingh and Thakuprasad were noted in the remarks column. But the column regarding tenancy right is definitely blank. The owner is shown in the Khasra as the State "Milkiat Sarkar". In the settlement of 1890-91 Amansingh Narpatsingh is again shown in the remarks column of the khata. But the column regarding any kind of tenancy right is again blank. It is clear that in the settlements of 1860 and 1890-91 the ownership of the land is recorded as that of the Government. The possession of the plaintiffs or of their ancestors could not be attributed to ownership or tenancy right of the property. In the settlement of 1909-10, Ex. P-3 there is no entry in the remarks column showing the possession of the ancestors of the plaintiffs. It was said on behalf of the plaintiffs that no notice was given to them of the proceedings of the settlements of 1909-10. Even assuming that this allegation is correct the entries of the khasra P-3 cannot be treated to be a nullity and of no effect. In any event it was open to the plaintiffs to adduce other reliable evidence to prove their possession between the years 1909 to 1932.But the plaintiffs have failed to produce any such evidence. In the nazul settlement of 1922-23 the tank was given new plot numbers 33, 34, 35, 36, 37 and 171 and its area was recorded as 5.24 acres. In this settlement about 2 acres of land was found to be occupied by the Municipal Committee, Jabalpur. The land so found to be occupied was recorded in the possession of the Municipal Committee, Jabalpur and the remaining land was again recorded as "Milkiat Sarkar". There is no entry as regards the remaining land recording anybodys possession in the remarks column. Actually proclamations were made during this settlement and objections were invited as per Ex ID-14. A date was fixed upto 31st August, 1924 but no one came forward. The proclamation clearly recited that the vacant sites which were not in possession of anybody were not recognised as belonging to any person. It is impossible to believe that the plaintiffs or their ancestors were unaware of such a proclamation. Had they been in possession they would not have failed to make a claim. For the period after 1933-34 the plaintiffs produced account books to show that they exercised certain rights.Certain receipts were also proved but they also relate to a period after 1939. We have gone through the oral evidence produced by the plaintiffs and it appears to be unreliable. The result is that for the period 1891 till 1932 there is no reliable oral documentary evidence to prove that the plaintiffs or their ancestors had any possession over the disputed land. On the contrary the disputed land i.e., Phoota Tal was always recognised as Milkiat Sarkar and the State Government was justified in holding that the order of the Deputy Commissioner dated 7th May, 1948 should be set aside.11. In the course of the argument reference was made by Mr. Gupte to the following passage in the Central Provinces Settlement Instructions (Reprint of 1953) page 213:"In dealing with proposed method of the settlement of titles it will be convenient in order to remove all causes for misapprehension among residents, to lay emphasis on the policy of Government in making these settlements. That policy was defined in the Chief Commissioners Resolution No. 502-B-K dated the 19th October, 1917, in the Revenue and Scarcity Department, but its main principles will bear repetition.As it is not the intention of Government in making the settlement to disturb long possession, but only to obtain an accurate record of the lands which are its properly and to secure its right to any land revenue to which it may be entitled, long possession, even without clear proof of a definite grant from Government will be recognised as entitled the holder to possession. In deciding what constitutes long possession in any individual town, regard will be had to the special circumstances of the place, and while this point will be dealt with more particularly in the Deputy Commissioners report, the following general principles will ordinarily be observed:(1) all occupants who are able to prove possession to any land prior to 1891 or such later date as may be fixed for each town, either by themselves or by a valid title from a previous holder, and all occupants who can prove a definite grant or lease from Government will be recorded as entitled to hold such land as against Government (paragraph 6 of the Resolution)."On the basis of this passage it was argued that it was the duty of the settlement officer to treat the plaintiffs as having established their title because they were shown to be in possession in the settlement of the year 1890-91.We are unable to accept this argument as correct. The passage quoted above only applies to a case where the ownership of the land was unknown i. e., where possession is proved for a long time, but its original title could not be traced, and not to a case where the land is recorded as Government land.
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two persons who gave the notice, the respondent alone file the suit. The trial Court held that the original grant was not of the entire village and was not so confirmed or recognised by the Government of Madras and as it was not an "Estate" within the meaning of S. 3 (2) (d) of the Madras Estates Land Act, the Madras Rent Reduction Act, 1947 did not apply to it. But the suit was dismissed on the ground that although two persons had given notice under Section 80 of the Code of Civil Procedure, only one person had filed the suit. The High Court agreed with the trial Court that the grant was not of an entire village but it also held that the notice was not defective and the suit was maintainable as it was a representative suit and the permission of the Court under Order 1, Rule 8 had been obtained in this case. The High Court granted the respondent the relief prayed for by him. Against the order of the High Court the appellant appealed to this Court which dismissed the appeal holding that in the circumstances of the case there was no illegality even though the notice was given by two persons and the suit was filed by only one. If the Court grants permission to one parson to institute a representative suit and if the person had served the notice under Section 80, the circumstance that another person had joined him in serving the notice but did not join him in the suit, was not a sufficient ground for regarding the suit asthe principle of these decisions has no bearing on the question presented for determination in the present case. In Vellayam Chettiars case, AIR 1947 PC 197 (supra) a notice was given by one plaintiff stating the cause of action, his plain, description and place of his residence and the relief which he claimed although the suit was instituted by him andour opinion, the argument put forward on behalf of defendant No. 1 is well founded and must be accepted as correct. In the settlement of 1863-64 Ex. P-1 the names of Amansingh and Thakuprasad were noted in the remarks column. But the column regarding tenancy right is definitely blank. The owner is shown in the Khasra as the State "Milkiat Sarkar". In the settlement of 1890-91 Amansingh Narpatsingh is again shown in the remarks column of the khata. But the column regarding any kind of tenancy right is again blank. It is clear that in the settlements of 1860 and 1890-91 the ownership of the land is recorded as that of the Government. The possession of the plaintiffs or of their ancestors could not be attributed to ownership or tenancy right of the property. In the settlement of 1909-10, Ex. P-3 there is no entry in the remarks column showing the possession of the ancestors of the plaintiffs. It was said on behalf of the plaintiffs that no notice was given to them of the proceedings of the settlements of 1909-10. Even assuming that this allegation is correct the entries of the khasra P-3 cannot be treated to be a nullity and of no effect. In any event it was open to the plaintiffs to adduce other reliable evidence to prove their possession between the years 1909 to 1932.But the plaintiffs have failed to produce any suchthe nazul settlement of 1922-23 the tank was given new plot numbers 33, 34, 35, 36, 37 and 171 and its area was recorded as 5.24 acres. In this settlement about 2 acres of land was found to be occupied by the Municipal Committee, Jabalpur. The land so found to be occupied was recorded in the possession of the Municipal Committee, Jabalpur and the remaining land was again recorded as "Milkiat Sarkar". There is no entry as regards the remaining land recording anybodys possession in the remarks column. Actually proclamations were made during this settlement and objections were invited as per Ex ID-14. A date was fixed upto 31st August, 1924 but no one came forward. The proclamation clearly recited that the vacant sites which were not in possession of anybody were not recognised as belonging to any person. It is impossible to believe that the plaintiffs or their ancestors were unaware of such a proclamation. Had they been in possession they would not have failed to make a claim. For the period after 1933-34 the plaintiffs produced account books to show that they exercised certain rights.Certain receipts were also proved but they also relate to a period after 1939. We have gone through the oral evidence produced by the plaintiffs and it appears to be unreliable. The result is that for the period 1891 till 1932 there is no reliable oral documentary evidence to prove that the plaintiffs or their ancestors had any possession over the disputed land. On the contrary the disputed land i.e., Phoota Tal was always recognised as Milkiat Sarkar and the State Government was justified in holding that the order of the Deputy Commissioner dated 7th May, 1948 should be setthe basis of this passage it was argued that it was the duty of the settlement officer to treat the plaintiffs as having established their title because they were shown to be in possession in the settlement of the year 1890-91.We are unable to accept this argument as correct. The passage quoted above only applies to a case where the ownership of the land was unknown i. e., where possession is proved for a long time, but its original title could not be traced, and not to a case where the land is recorded as Governmentare unable to accept this argument as correct. The passage quoted above only applies to a case where the ownership of the land was unknown i. e., where possession is proved for a long time, but its original title could not be traced, and not to a case where the land is recorded as Government
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Income Tax Officer, Madras Vs. S. K.Habibullah, Madras | when the assessment of the firm is completed before the 1st of April, 1952. The Legislature has given to cl. (5) a partial retrospective operation. The provision enacted by cl. (5) is not procedural in character: it affects vested rights of the assessee. Therefore in the absence of compelling reasons the court would not be justified in giving a greater retrospectivity to the provision than is warranted by the plain words used by the Legislature. As observed by the Judicial Committee of the Privy Council in Income-tax Commissioner v. Khemchand Ramdas : " x x x x when once a final assessment is arrived at, it cannot, in s their Lordships opinion, be reopened except in the circumstances detailed in sections 34 and 35 of the Act x x x and within the time limited by those section."7. The orders of assessment are, subject to the provisions relating to appeals, revisions, reassessment and rectification, final: it is not open to the Income-tax Officer to reopen the assessment because he thinks fit to do so. The provisions relating to assessments and rectification or reopening thereof are exhaustive, and may not be extended by analogies. The right to rectify an assessment may therefore be exercised in strict compliance with conditions prescribed by the statute in that behalf. Before April 1, 1952, rectification of assessment of an individual on the disclosure of errors consequent upon assessment of the firm of which he is a partner was not for reasons already stated permissible under cl. (1) of s. 35 This power was conferred for the first time by cl. (5) as from April 1, 1952, and by the express words of the clause arose from the assessment of the firm. If by the law prevailing at the time when the assessment of the firm was made, no such result as is contemplated by the new clause (5) arose, to give a larger retrospective operation than is directed, is to ascribe to the Legislature an intention different from the one expressed, and to make a larger inroad upon the finality of that assessment than is permitted by the Legislature. Section 35(5) does not purport to amend cl. (1); that clause is left untouched by the amending statute. Its application, by fiction, is extended to other clauses of cases by declaring what in truth are not mistakes, as mistakes. clause (5), therefore confers an additional power of rectification upon the Income- tax authorities and in the absence of compelling reasons we will not be justified in upholding the exercise of the power to assessments of firms which have been completed before the date on which the power was invested.Some assistance may be derived from the phraseology used by the legislature in cl. (6) which was enacted simultaneously with. cl. (5). That clause provides, omitting parts which are not material: "Where the excess profits tax or the business profits tax payable by an assessee has been modified x x x x or where any excess profits tax or business profit tax has been assessed after the completion of the corresponding assessment for income-tax (whether before or after the commencement of the Indian Income-tax (Amendment) Act, 1953), and in consequence thereof it is necessary to recompute the total income of the assessee chargeable to income-tax, such recomputation shall be deemed to be a rectification of a mistake apparent from the record within the meaning of this section, x x x".8. Manifestly, by the express provisions contained in cl. (6) the fiction applies whether the assessment is completed before or after the commencement of the Indian Income-tax (Amendment) Act, 1953. Even though cl. (6) is also made retrospectively operative as from April 1, 1952, the legislature has authorised the revenue authorities after April 1, 1952 to pass an order recomputing the total income of the assessee whether or not the assessment was completed before the commencement of the Indian Income tax (Amendment) Act, 1953. It is true that by the Explanation to that clause, for the purposes of this sub-section, where the assessee is a firm, the provisions of sub-s. (5) shall also apply as they apply to the rectification of the assessment of the partners of the firm, but thereby an intention to give a larger retrospective operation to cl. (5), in so far as it deals with rectification of assessments of partners consequential upon the completion of the assessment of the firm in which they are partners, is not indicated. When the legislature under cl. (6) of s. 35 expressly authorised rectification in the circumstances mentioned therein even if the assessment has been completed before the Indian Income-tax (Amendment) Act, 1953, and it made no such provision in cl. (5), it would be reasonable to infer that the Legislature did not intend to grant to the revenue authorities a power to rectify assessments falling within cl. (5) where the firms assessment was completed before April 1, 1952.In our view, it was rightly held in Kandan Lal v. Income-tax Officer following Kanumaralapudi Lakshminarayana Chetty v. First Additional Income- Tax Officer, Nellore that cl. (5), of s. 35 of the Indian Income-tax Act, which was enacted by the Income Tax, (Amendment) Act, 1953, was not declaratory of pre-existing law, and as it clearly affected vested right which had accrued to the assessee, must be deemed to have come into force from April 1, 1952. It had no greater retrospective effect than was expressly granted to it. The power to rectify assessment of a partner consequent upon the assessment of the firm of which he is a partner by including or correcting his share of profit or loss can therefore be exercised only in Case of assessment of the firm made on or after April 1, 1952. The Income-tax officer has no jurisdiction under cl. (5 ) of s. 35 of the Act to rectify the assessment of a partner of a firm consequent upon the assessment or reassessment of the firm disclosing an error made before April 1, 1952.9. | 0[ds]The orders of assessment are, subject to the provisions relating to appeals, revisions, reassessment and rectification, final: it is not open to the Income-tax Officer to reopen the assessment because he thinks fit to do so. The provisions relating to assessments and rectification or reopening thereof are exhaustive, and may not be extended by analogies. The right to rectify an assessment may therefore be exercised in strict compliance with conditions prescribed by the statute in that behalf. Before April 1, 1952, rectification of assessment of an individual on the disclosure of errors consequent upon assessment of the firm of which he is a partner was not for reasons already stated permissible under cl. (1) of s. 35 This power was conferred for the first time by cl. (5) as from April 1, 1952, and by the express words of the clause arose from the assessment of the firm. If by the law prevailing at the time when the assessment of the firm was made, no such result as is contemplated by the new clause (5) arose, to give a larger retrospective operation than is directed, is to ascribe to the Legislature an intention different from the one expressed, and to make a larger inroad upon the finality of that assessment than is permitted by the Legislature. Section 35(5) does not purport to amend cl. (1); that clause is left untouched by the amending statute. Its application, by fiction, is extended to other clauses of cases by declaring what in truth are not mistakes, as mistakes. clause (5), therefore confers an additional power of rectification upon the Income- tax authorities and in the absence of compelling reasons we will not be justified in upholding the exercise of the power to assessments of firms which have been completed before the date on which the power was invested.Some assistance may be derived from the phraseology used by the legislature in cl. (6) which was enacted simultaneously with. cl. (5). That clause provides, omitting parts which are not material: "Where the excess profits tax or the business profits tax payable by an assessee has been modified x x x x or where any excess profits tax or business profit tax has been assessed after the completion of the corresponding assessment for income-tax (whether before or after the commencement of the Indian Income-tax (Amendment) Act, 1953), and in consequence thereof it is necessary to recompute the total income of the assessee chargeable to income-tax, such recomputation shall be deemed to be a rectification of a mistake apparent from the record within the meaning of this section, x xby the express provisions contained in cl. (6) the fiction applies whether the assessment is completed before or after the commencement of the Indian Income-tax (Amendment) Act, 1953. Even though cl. (6) is also made retrospectively operative as from April 1, 1952, the legislature has authorised the revenue authorities after April 1, 1952 to pass an order recomputing the total income of the assessee whether or not the assessment was completed before the commencement of the Indian Income tax (Amendment) Act, 1953. It is true that by the Explanation to that clause, for the purposes of this sub-section, where the assessee is a firm, the provisions of sub-s. (5) shall also apply as they apply to the rectification of the assessment of the partners of the firm, but thereby an intention to give a larger retrospective operation to cl. (5), in so far as it deals with rectification of assessments of partners consequential upon the completion of the assessment of the firm in which they are partners, is not indicated. When the legislature under cl. (6) of s. 35 expressly authorised rectification in the circumstances mentioned therein even if the assessment has been completed before the Indian Income-tax (Amendment) Act, 1953, and it made no such provision in cl. (5), it would be reasonable to infer that the Legislature did not intend to grant to the revenue authorities a power to rectify assessments falling within cl. (5) where the firms assessment was completed before April 1, 1952.In our view, it was rightly held in Kandan Lal v. Income-tax Officer following Kanumaralapudi Lakshminarayana Chetty v. First Additional Income- Tax Officer, Nellore that cl. (5), of s. 35 of the Indian Income-tax Act, which was enacted by the Income Tax, (Amendment) Act, 1953, was not declaratory of pre-existing law, and as it clearly affected vested right which had accrued to the assessee, must be deemed to have come into force from April 1, 1952. It had no greater retrospective effect than was expressly granted to it. The power to rectify assessment of a partner consequent upon the assessment of the firm of which he is a partner by including or correcting his share of profit or loss can therefore be exercised only in Case of assessment of the firm made on or after April 1, 1952. The Income-tax officer has no jurisdiction under cl. (5 ) of s. 35 of the Act to rectify the assessment of a partner of a firm consequent upon the assessment or reassessment of the firm disclosing an error made before April 1, 1952. | 0 | 3,027 | 991 | ### Instruction:
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when the assessment of the firm is completed before the 1st of April, 1952. The Legislature has given to cl. (5) a partial retrospective operation. The provision enacted by cl. (5) is not procedural in character: it affects vested rights of the assessee. Therefore in the absence of compelling reasons the court would not be justified in giving a greater retrospectivity to the provision than is warranted by the plain words used by the Legislature. As observed by the Judicial Committee of the Privy Council in Income-tax Commissioner v. Khemchand Ramdas : " x x x x when once a final assessment is arrived at, it cannot, in s their Lordships opinion, be reopened except in the circumstances detailed in sections 34 and 35 of the Act x x x and within the time limited by those section."7. The orders of assessment are, subject to the provisions relating to appeals, revisions, reassessment and rectification, final: it is not open to the Income-tax Officer to reopen the assessment because he thinks fit to do so. The provisions relating to assessments and rectification or reopening thereof are exhaustive, and may not be extended by analogies. The right to rectify an assessment may therefore be exercised in strict compliance with conditions prescribed by the statute in that behalf. Before April 1, 1952, rectification of assessment of an individual on the disclosure of errors consequent upon assessment of the firm of which he is a partner was not for reasons already stated permissible under cl. (1) of s. 35 This power was conferred for the first time by cl. (5) as from April 1, 1952, and by the express words of the clause arose from the assessment of the firm. If by the law prevailing at the time when the assessment of the firm was made, no such result as is contemplated by the new clause (5) arose, to give a larger retrospective operation than is directed, is to ascribe to the Legislature an intention different from the one expressed, and to make a larger inroad upon the finality of that assessment than is permitted by the Legislature. Section 35(5) does not purport to amend cl. (1); that clause is left untouched by the amending statute. Its application, by fiction, is extended to other clauses of cases by declaring what in truth are not mistakes, as mistakes. clause (5), therefore confers an additional power of rectification upon the Income- tax authorities and in the absence of compelling reasons we will not be justified in upholding the exercise of the power to assessments of firms which have been completed before the date on which the power was invested.Some assistance may be derived from the phraseology used by the legislature in cl. (6) which was enacted simultaneously with. cl. (5). That clause provides, omitting parts which are not material: "Where the excess profits tax or the business profits tax payable by an assessee has been modified x x x x or where any excess profits tax or business profit tax has been assessed after the completion of the corresponding assessment for income-tax (whether before or after the commencement of the Indian Income-tax (Amendment) Act, 1953), and in consequence thereof it is necessary to recompute the total income of the assessee chargeable to income-tax, such recomputation shall be deemed to be a rectification of a mistake apparent from the record within the meaning of this section, x x x".8. Manifestly, by the express provisions contained in cl. (6) the fiction applies whether the assessment is completed before or after the commencement of the Indian Income-tax (Amendment) Act, 1953. Even though cl. (6) is also made retrospectively operative as from April 1, 1952, the legislature has authorised the revenue authorities after April 1, 1952 to pass an order recomputing the total income of the assessee whether or not the assessment was completed before the commencement of the Indian Income tax (Amendment) Act, 1953. It is true that by the Explanation to that clause, for the purposes of this sub-section, where the assessee is a firm, the provisions of sub-s. (5) shall also apply as they apply to the rectification of the assessment of the partners of the firm, but thereby an intention to give a larger retrospective operation to cl. (5), in so far as it deals with rectification of assessments of partners consequential upon the completion of the assessment of the firm in which they are partners, is not indicated. When the legislature under cl. (6) of s. 35 expressly authorised rectification in the circumstances mentioned therein even if the assessment has been completed before the Indian Income-tax (Amendment) Act, 1953, and it made no such provision in cl. (5), it would be reasonable to infer that the Legislature did not intend to grant to the revenue authorities a power to rectify assessments falling within cl. (5) where the firms assessment was completed before April 1, 1952.In our view, it was rightly held in Kandan Lal v. Income-tax Officer following Kanumaralapudi Lakshminarayana Chetty v. First Additional Income- Tax Officer, Nellore that cl. (5), of s. 35 of the Indian Income-tax Act, which was enacted by the Income Tax, (Amendment) Act, 1953, was not declaratory of pre-existing law, and as it clearly affected vested right which had accrued to the assessee, must be deemed to have come into force from April 1, 1952. It had no greater retrospective effect than was expressly granted to it. The power to rectify assessment of a partner consequent upon the assessment of the firm of which he is a partner by including or correcting his share of profit or loss can therefore be exercised only in Case of assessment of the firm made on or after April 1, 1952. The Income-tax officer has no jurisdiction under cl. (5 ) of s. 35 of the Act to rectify the assessment of a partner of a firm consequent upon the assessment or reassessment of the firm disclosing an error made before April 1, 1952.9.
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### Explanation:
The orders of assessment are, subject to the provisions relating to appeals, revisions, reassessment and rectification, final: it is not open to the Income-tax Officer to reopen the assessment because he thinks fit to do so. The provisions relating to assessments and rectification or reopening thereof are exhaustive, and may not be extended by analogies. The right to rectify an assessment may therefore be exercised in strict compliance with conditions prescribed by the statute in that behalf. Before April 1, 1952, rectification of assessment of an individual on the disclosure of errors consequent upon assessment of the firm of which he is a partner was not for reasons already stated permissible under cl. (1) of s. 35 This power was conferred for the first time by cl. (5) as from April 1, 1952, and by the express words of the clause arose from the assessment of the firm. If by the law prevailing at the time when the assessment of the firm was made, no such result as is contemplated by the new clause (5) arose, to give a larger retrospective operation than is directed, is to ascribe to the Legislature an intention different from the one expressed, and to make a larger inroad upon the finality of that assessment than is permitted by the Legislature. Section 35(5) does not purport to amend cl. (1); that clause is left untouched by the amending statute. Its application, by fiction, is extended to other clauses of cases by declaring what in truth are not mistakes, as mistakes. clause (5), therefore confers an additional power of rectification upon the Income- tax authorities and in the absence of compelling reasons we will not be justified in upholding the exercise of the power to assessments of firms which have been completed before the date on which the power was invested.Some assistance may be derived from the phraseology used by the legislature in cl. (6) which was enacted simultaneously with. cl. (5). That clause provides, omitting parts which are not material: "Where the excess profits tax or the business profits tax payable by an assessee has been modified x x x x or where any excess profits tax or business profit tax has been assessed after the completion of the corresponding assessment for income-tax (whether before or after the commencement of the Indian Income-tax (Amendment) Act, 1953), and in consequence thereof it is necessary to recompute the total income of the assessee chargeable to income-tax, such recomputation shall be deemed to be a rectification of a mistake apparent from the record within the meaning of this section, x xby the express provisions contained in cl. (6) the fiction applies whether the assessment is completed before or after the commencement of the Indian Income-tax (Amendment) Act, 1953. Even though cl. (6) is also made retrospectively operative as from April 1, 1952, the legislature has authorised the revenue authorities after April 1, 1952 to pass an order recomputing the total income of the assessee whether or not the assessment was completed before the commencement of the Indian Income tax (Amendment) Act, 1953. It is true that by the Explanation to that clause, for the purposes of this sub-section, where the assessee is a firm, the provisions of sub-s. (5) shall also apply as they apply to the rectification of the assessment of the partners of the firm, but thereby an intention to give a larger retrospective operation to cl. (5), in so far as it deals with rectification of assessments of partners consequential upon the completion of the assessment of the firm in which they are partners, is not indicated. When the legislature under cl. (6) of s. 35 expressly authorised rectification in the circumstances mentioned therein even if the assessment has been completed before the Indian Income-tax (Amendment) Act, 1953, and it made no such provision in cl. (5), it would be reasonable to infer that the Legislature did not intend to grant to the revenue authorities a power to rectify assessments falling within cl. (5) where the firms assessment was completed before April 1, 1952.In our view, it was rightly held in Kandan Lal v. Income-tax Officer following Kanumaralapudi Lakshminarayana Chetty v. First Additional Income- Tax Officer, Nellore that cl. (5), of s. 35 of the Indian Income-tax Act, which was enacted by the Income Tax, (Amendment) Act, 1953, was not declaratory of pre-existing law, and as it clearly affected vested right which had accrued to the assessee, must be deemed to have come into force from April 1, 1952. It had no greater retrospective effect than was expressly granted to it. The power to rectify assessment of a partner consequent upon the assessment of the firm of which he is a partner by including or correcting his share of profit or loss can therefore be exercised only in Case of assessment of the firm made on or after April 1, 1952. The Income-tax officer has no jurisdiction under cl. (5 ) of s. 35 of the Act to rectify the assessment of a partner of a firm consequent upon the assessment or reassessment of the firm disclosing an error made before April 1, 1952.
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Laxman Balwant Bhopatkar ( Since Deceased ) By Anothe Vs. The Charity Commissioner, Bombay | laws to change them at their pleasure, when circumstances may seem to require. With the wisdom of the proposed change the courts are not concerned. We perform our duty in determining whether or not the method adopted to make the change violates established law. In the present case we find no apparent intent to violate any law. On the contrary, the trust specifically requires its objects to be accomplished by lawful means."Now, let me consider some of the provisions of the Act which are in direct conflict with some of the tests laid down by the English decisions to ascertain whether a purpose is charitable or not. The first is S. 9(4) which says that a charitable purpose includes the advancement of any other object of general public utility. I have already jointed out the wide amplitude of these words. Section 11 says:"A public trust created for purposes some of which are charitable or religious and some are not shall not be deemed to be void in respect to the charitable or religious purpose, only on the ground that it is void with respect to the non-charitable or non-religious purpose."While in England if a trust was created for a charitable or a non-charitable purpose, the entire trust would be void, as the trustees could administer the trust exclusively for the benefit of non-charitable purposes, under S. 11 of the Act the law is changed in regard to that matter. Section 55 introduces a cy pres doctrine which is wider in scope than the doctrine is generally understood in that it enables the court, inter alia, under certain circumstances, if it is not in public interest, expedient, practicable, desirable, necessary or proper to carry out wholly or partially the original intention of the author of the public trust or the object for which the public trust was created, to apply the same to any other object. The Act widens the scope of a charitable purpose as understood in the English law, recognizes the validity of the trust though the purposes include both charitable and non-charitable, and enables the court, under certain circumstances, to divert the trust to other charitable purposes not intended by the author of the trust. The liberal spirit adopted by the Act does not permit a narrow interpretation of a charitable purpose accepted by the English courts under different circumstances.51. Let me now summarize my views on the subject : (1) The English decisions are based upon a pragmatic approach to the problems that arose before them, having regard to the historical development of the law of charities in that country; there is no common thread discernible in the large volume of English decisions. (2)Under the Act, unlike in England, the advancement of the object of common public utility is declared to be a charitable purpose, and it is not permissible to curtail its scope with reference to English decisions. (3) The expression "object of general public utility" is very comprehensive and it includes all purposes, whether political or otherwise, provided it is an object of general public utility.52. The English decisions, therefore, afford no help to construe S. 9 of the Act to ascertain whether a purpose is charitable or not under the Indian law.53. For the reasons I have given, I hold, without any hesitation that the purpose of the trust in the present case is a charitable purpose within the meaning of S. 9 of the Act.54. Even on that basis it is contended that a trust giving power to a trustee to spend the trust funds on charitable and non-charitable objects is void and as the High Court held that the second object of the trust was non-charitable the entire trust must fail. This argument ignores the distinction between a trust deed empowering a trustee to spend on a charitable object or a non-charitable object and a trust deed empowering him to spend on a charitable object and a non-charitable object. In Halsburys Laws of England, 3rd Edn. Vol. 4, at p. 272, the following passage appears:"When a testator gives funds to be applied partly for objects which are charitable and partly for objects which either are not charitable or fail, but does not specify the proportions in which the funds are to be applied for the different objects the Court will make an apportionment.""Again, where a fund is given for several objects, some charitable and some non-charitable or illegal, there being a clear intention to devote some part to the charitable objects, if it can be ascertained what are the proper proportions to be attributed to the several objects, the Court directs an inquiry, but if from the nature of the gift it appears impracticable to fix the proportions, the Court divides the fund equally between the different objects."This passage is supported by decisions relied upon by he author. It is not necessary to discuss them in detail, as the learned counsel for the appellant has not questioned the correctness of the said proposition. In this view, it is not necessary to consider whether S. 11 of the Act has retrospective operation. Learned counsel for the appellant attempted to argue that S. 55 of the Act offends his right of reversion to the property which is the subject-matter of the trust. The question of the validity of the said section does not arise in the present case. The only question is whether it is the duty of the trustees of the trust to make an application for registration of the said trust. As I have held that the trust is a public trust within the meaning of S. 9 of the Act, under S. 18 thereof, the said trust has to be registered in the manner prescribed therein. Questions such as the extent of the trust, the scope of the doctrine of cy pres, are all foreign to the present inquiry. I do not propose to express any opinion on the same.55. In the result, the appeal fails and is dismissed with costs. | 1[ds]Analysing the provisions of the clause it would be seen that the prime object of the trust was the fulfilment of the basic purpose which animated the activities of the late Lokmanya and which he sought to accomplish through the two news-papers - Kesari and Mahratta after he took charge of them. This has to he read with the provision of the will directing the continuance of the two newspapers with their policy entirely unchanged. As if in explanation or exemplification of this prime purpose we have the statement that the object the Lokmanya sought to achieve through the two newspapers was that of spreading political education and thereby making the people alive to their political rights and carrying out other multifarious public activities conducive to the national ideal.9. Pausing here, it is necessary to mention that though the object of the trust was thus intimately bound up with the policy and purpose of the Kesari and Mahratta after the Lokmanya took charge of them, no evidence was led at any stage by either party as to what precisely was the policy or the object of the two newspapers which was sought to be achieved by the Lokmanya through them. Nor was evidence placed before the Court of the precise aims and objects which the Lokmanya inculcated by his teachings through these newspapers. It was possibly assumed that the life and ideals for which the Lokmanya stood, and in particular the matters which he considered as the prime purpose and policy of these two newspapers with which he was connected for over two decades, were matters of history so well-known to the Courts and authorities in Maharashtra and therefore on which no formal evidence was required to be adduced. We would, however, add that such evidence on the record would have lightened our task and that it is with this handicap that the point in controversy in the appeal has to be decided.We consider that there is considerable force in the submission of learned Counsel that the trust has been founded with a view to achieve a single objective or purpose, viz., "the fulfilment perpetually and uninterruptedly" of "the object with which the late Lokmanya took up all activities after he took charge of the newspapers Kesari and Mahratta." It might be that the activities for which the newspapers were utilised after he took charge of them disclosed more than purpose, but the common link between every such line of activity was that it stemmed from a political purpose, for the newspapers were made to serve as the vehicle for achieving his objectives. The question, therefore, as to the purpose of the trust would have to be resolved by examining the various activities in which he himself engaged and the object with which he engaged in them, but the latter is not the basis upon which the High Court has proceeded in reaching a finding that the trust-deed disclosed a duality of purpose one of which the learned Judges recognised was not charitable but the other was held to be so. The words in the second limb of the first clause referring to "the spreading of political education through the newspapers and thereby making people alive to their political rights" and secondly "the carrying on other multifarious public activities conducive to the national ideal" were really meant as illustrations of the activities undertaken by the late Lokmanya during his life-time as is manifest by the use of the words "such as" before the clause, if the object with which the Lokmanya took up his activities after he assumed charge of the newspapers was dominated by a political purpose and the newspapers were used by him to achieve that objective, the illustrations of his activities set out in the clause must be similarlyWe have earlier drawn attention to the feature that no evidence was placed before the authorities under the Act or before the Courts as to the object which the Lokmanya sought to achieve by the two newspapers. Learned Counsel for the appellant invited our attention to the reported decision of the Bombay High Court where certain writings and articles of the late Lokmanya came up for consideration, and in particular to the articles which formed the subject-matter of the charges against the Lokmanya in prosecutions for sedition. But if one were confined to these, they must obviously give us only a partial and truncated idea of his activities and so are apt to afford but a distorted picture of the objects with which the two newspapers were conducted. We, therefore, examined the literature bearing on the life and work of this great leader and particularly two recent books on the topic "Bala Gangadhar Tilak by Parvate (1958) which was brought to our attention by Mr. Sanyal appearing for the respondent, and Lokmanya Tilak by Dhananjay Keer (September, 1959)". In doing so we have confined ourselves to the facts there stated, and have refrained from taking into account the evaluation by the authors of Tilaks activities or their comments on any particular views on public or social matters entertained by the subject of their biography.17. As a result of this examination we gather the following facts which are of relevance to the point before us. Tilak, though he was associated with the two newspapers from their start in or about 1881, took over the editorship of the Kesari in 1887 and became the sole-proprietor of both the papers by 1893 and was in charge of their conduct till his death in 1920. Tilak was a public figure who dominated the political firmament of the country for near three decades. He was a rebel against political wrongs. He was a champion of all who were oppressed and conceived it as his sacred mission to rouse the people to a sense of their wrongs and of their strength in winning their salvation, for it was his firm conviction that petty tyranny by the foreign bureaucracy was possible because of the ignorance of the people and their apathy to their condition. His ideas might be gleaned from his observation that people must fight for the vindication of their rights and that those who were unmoved at the sight of injustice and the high-handed policy of the Government, should not be regarded as human beings. The two newspapers were intended by Tilak to be the mechanism by which the wrongs done to the people should be brought home to them and their conscience roused to a sense of the injustices and oppressions to which they were subjected. In undertaking the responsibility of running the Kesari and the Mahratta it was a clear indication of his resolve to throw himself completely into public life and to devote himself to the task of the political education of the masses. He wrote in the Kesari about every public grievance and every public cause and this made him the champion of popular causes and a mass leader. The two, the Kesari and the Mahratta, were in no sense mere newspapers. They were primarily views-papers vehicles of public opinion and the news they contained were carefully selected to be helpful to the views propagated in them. Tilak looked upon Kesari as the chief vehicle for propagating his views as he wanted them to be disseminated as widely as possible. The objective determined its style; it was direct, simple, forthright. The papers championed the cause of the underdog and every where fought against injustice, contained a study of public complaints and grievances, exposed oppressive officers, criticised fearlessly and made constructive suggestions for the reform of the administration and championed the peoples cause in every sense. During Tilaks days Tilak and Kesari became synonymous terms. The Kesari had been the citadel of the national fight and remained impregnable even through repressive campaigns and became a national asset. It was Tilaks confirmed view that the ills of the nation demanded political reforms and not immediate social reforms. Tilak challenged the right of the foreign bureaucracy to sit in legislative judgment on Indian society. It was the view of Tilak that respect must be paid to the prejudices of people and that one must try to make the humblest of them feel that he was one of them. Tilak was convinced of the futility of appeals to people made in the form of speeches and resolutions with their eyes fixed towards Government and realised that the Indian National Congress with which he was closely associated from 1889 would be able to ameliorate the condition of the people if the masses were attracted to it and their power harnessed to the chariot of the Congress. It was the main role in his life to stir up the people against their poverty, degradation and slavery. To foster opposition to British rule, to bring people into conflict with Government, and to make Government unpopular was the great aim of Tilaks speeches, writings, and leadership. The enthusiasm and vigour of the people had to be utilized for keeping up their pride in the achievements of their ancestors and as a means of educating the common people. He sought to rouse the pride of the people in their past heroes so as to unify them into one body to achieve political liberation. His plea was that people should be taught what their rights were and how they could get their grievances redressed. That was the way to increase the influence of the Congress. He taught people to act fearlessly though peacefully and lawfully and get their grievances redressed, for the principle underlying his philosophy was that foreign yoke could be overthrown only when people were awakened and discontented, when it is not possible for a foreign Government to hold them under its way. Without attracting the attention of the people to the unjust state of affairs no political progress was possible, nor reform in the administration. From about 1903 Tilak was gradually shifting to what the Moderates used to call Extremism, smouldering as be was at the apathy shown by the Moderate leaders towards active politics. The Congress which gave occasion for orators brandishing polished phrases and ended with prayers and petitions had grown sterile. He was coming to realise that politics must cease to be the pastime of the old orators and title-holders. Though he felt that the record of the Congress left no room for disappointment or despair, its triumph lay in awakening the soul of the nation. The Moderates accepted British rule as a divine dispensation but the militant nationalists led by Tilak refused to believe in the doctrine of divine dispensation. After the partition of Bengal in 1905 and the agitation which followed it. Tilak wrote articles discussing the policy of boycott of foreign goods, and particularly of foreign cloth, and he considered that a boycott on a national scale was the proper remedy, but its results depended upon actions and not upon words. Tilak was then the spearhead of the Swadeshi movement, but even here it was fired and inspired by a political purpose, for he saidthe Indian Government dissociates itself from the commercial aspirations of the British Nation, then it will be time for Swadeshi workers to consider the question of dissociating their movement from politics. But so long as politics and commerce are blended together in the policy of the Government of India, it will be a blunder to dissociate Swadeshi movement fromin the Kesari he declared that if it was unavoidable to use a foreign article, they should give preference to articles produced in Asiatic countries and the next preference should be given to other European countries and America.18. It was Tilak who made it the mission of his life to arouse the people against political slavery, and foreign rule. He resolved to organise the people under the banner of the Congress and to make it the real spokesman of the people. The two newspapers served as the vehicle through which he aimed to achieve these objects. Possibly nothing brings out more forcibly the purpose and aim of the Lokmanya which animated his conduct of the newspapers than a self-appraisal which is extracted in the biography by Parvate already referred to.19. A controversy arose in 1919 about Tilaks neglect of or apathy to social reform and his exclusive attention to political progress and there was an attack by Dr. Paranjpye on this aspect of the matter in an article in the Bombay Chronicle reviewing Tilaks sins of omission and commission. Tilak published a rejoinder in which he reviewed his whole career. In the course of this letter Tilak said, "My views on political and social matters are well-known to the public. The charge against me is that my activity and propaganda are onesided. I do not hold that social reconstruction must be undertaken prior to political emancipation. I attach greater importance to the latter." Speaking of the Kesari he said, It is true that I made it an organ exclusively of political propaganda. I do not deny it, but at the same time let me point out that the political awakening in Maharashtra since then is more the work of this paper and my party than Mr. Paranjpye and the men of his ilk."20. Before concluding this part of the case it is necessary to refer to an aspect of the matter arising out of our summary of the Lokmanyas activities which he pursued through the two newspapers. It would be seen that he was wholly concerned with achieving the intimate association of the people and their-representatives in the administration and governance of the country, and if possible, the entire elimination of foreign rule altogether, and the two newspapers were utilised for educating and rousing people to achieve these. What Tilaks policy or activities would have been after complete independence had been achieved and the policy which he would have the papers pursue subsequently is an interesting question, but one which we consider not relevant for the determination of the question before us. What we are concerned with is as regards the object which Tilak sought to achieve by conducting these newspapers, and to perpetuate which the trust was founded. .21. The survey, though very inadequate, of the public life and activity of the Lokmanya in particular relationship with the two newspapers undoubtedly shows that his purpose in taking over and conducting the newspapers was clearly political, in the sense of seeking to achieve by means of rousing the consciousness of the people to their condition, a political awareness, by which adjustments of a political character would be demanded and enforced by the persons who imbibed those truths or were influenced by suchwas some debate before us as to the import of the expression "charitable" and arguments were addressed in particular as to the exact point of difference between the concept charity under the English Law and that under the Indian Law. No doubt, as pointed out by Lord Wright inChichester Diocesan Fund and Board of Finance (Incorporated) v. Simpsons 1944 AC 341 at p.353 the term "charity" has not, in England, always had a precise connotation. What constituted a charitable purpose has there been derived from the preamble of the Act 43 Elizabeth I Ch. IV (1601) which was taken to signify those purposes which would be held to be charitable. It is not necessary for us to set out the objects enumerated in that preamble but it was always considered that that list was not exhaustive though to decide whether a purpose was in law charitable or not, it has been the practice of the English Courts to refer to that preamble. In these decisions besides the object, there enumerated, others which by analogy were deemed to be "within the spirit and intendment of that statute" have been held to be charitable in the legal sense. Ever since ,however, the judgment of Lord Macnaghten in Commissionersfor Special Purposes of Income Tax v. Pemsel, 1891 AC531 the expression "charitable purpose" has been understood to comprise four main heads : (1) relief of poverty, (2) advancement of education and learning, (3) advancement of religion, and (4) other purposes beneficial to the community or the advancement of objects of general public utility. As regards the last clause, Lord Macnaghten expressed the view that under English law there might be some purposes of general utility which might be charitable and some which might not be, the true test being whether the particular purpose was within the spirit and intention of the statute of Elizabeth. Whether the concept of charity under Indian law is or is not wider than what Lord Macnaghten considered to be the scope of charitable purpose in England does not really arise for consideration in the case before us for we are bound by the terms of S. 9 of the Act which has defined the several categories into which a charity mightof a political objective, is not a charitable purpose, i.e., not one for the advancement of an object of general public utility correctly interpret the Indian statute and the law in India. Whatever differences there might be between the definition of "charity" and "charitable purpose" in the English and Indian law, we consider that there is none so far as regards "political purposes in the sense in which we have indicated earlier. In this context, it is significant that 1944 AC 341, in which Lord Wright speaking in the House of Lords expounded the uncertainties of the English law as to the meaning of "charity" and the appeal of the All India Spinners Association, 71 Ind App 159: (AIR 1944 PC 88 ) before the Judicial Committee were heard at about the same time, and in consequence the view of Lord Wright expressed in the latter decision that a political purpose is not an object of general public utility even on the wider language of the Indian statute reinforces our conclusion on the point. Even though the concept of charity under the Indian Law might be wider than as understood in England, particularly under the residuary head "advancement of an object of general utility," we consider that it would not include a "political purpose" in the sense indicated already.We are clearly of the opinion that a "political purpose" is not a charitable purpose as being one "for the advancement of any other object of general public utility" within S. 9(4) of the Act.33. To summarise the positionThe object for which "The Kesari and Mahratta Trust" was established was the achievement of a single purpose, viz., to continue in perpetuity the activities for the fulfillment of which Lokmanya Tilak took up the two newspapers.(2)The specification in cl. 1 of the Trust deed that these activities were directed to the spreading of political education through the newspapers and thereby making people alive to their political rights" was intended to describe the object of the Lokmanya in taking up the newspapers and correctly described the same, as seen from the public life and activities of Tilak, particularly in the matter of his conduct of the two newspapers.(3) The two newspapers were designed by the Lokmanya to be the vehicle for educating the mass of the population to a sense of the grievances suffered by them under foreign rulers, with a view to rouse them to political action and demand a share in Government. He was a full-time politician. At a time when Indian men of learning were eulogising British rule and the masses were inert and lethargic and oblivious to their degradation, Lokmanya, by his propaganda and leadership sought to infuse into the minds of the masses self-respect and courage. By his writings in these papers, Tilak demonstrated to the people that the foreign rule rested on no moral foundation and when he made people realise this, the achievement of freedom became assured. That is why Tilak has been aptly termed the father of Indias freedom struggle.(4)The life mission of Lokmanya which he sought to achieve and achieved through the two newspapers, and which is set out in the trust-deed as the object for which the trust was founded was, therefore, a political purpose.(5) A political purpose is not charitable under S. 9 of the Act and hence, the Trust was not required to be registered under S. 18 of the Act, and the order of the Assistant Charity Commissioner confirmed by the Charity Commissioner, directing the Trust to be registered was erroneous and should have been set aside by the District Court of Poona in Miscellaneous Application No. 325 ofwas a great savant. He lived and worked when India was a servile country. He had a great vision and that was India as a united, strong, prosperous, civilized and democratic country. He was not a person embroiled in party-politics, trying to build up a political career for himself. He lived, worked and died for a national cause. His activities and ideals were mostly, though not wholly, reflected in the two newspapers. "The Kesari" and "The Mahratta", two leading newspapers of the day which propagated his views not only throughout the Marathi speaking part of the country but also in other parts thereof. Through his papers, he gave information on various subjects, literary, political, social, moral, economic, etc. His papers created an atmosphere for constructive work in that part of the country and elsewhere, and supported many movements calculated to improve the conditions of the people. Subjects as varied as famine relief, prostitution, swadesi, plague relief, Bengal partition, Home-rule movement, national integration, and such other political and social movements, found powerful expression in the said newspapers. In short, his papers pleaded for the social, political, cultural and economic regeneration of the country. They were not confined to the narrow ideal of just replacing the foreign government by a national one, though it was an important step in the regeneration of the country.42. Can the objects of this great man, reflected, propagated and pursued by the said papers, be characterised as those not in the general public interest? To say that the object of a trust for a village school, hospital or choultry is one of general public utility and to deny that character to a trust created for pursuing the objects of Tilak, that is, the regeneration of the country, is to make a mockery of the section. What trust could be more in the interest of the public than that created to educate them in their political rights so that they could know their rights, understand and appreciate the problems of their country, and contribute their mite to its progress and prosperity.?43. It is said that Tilak was a leader of only one of the parties and his activities were analogous to those of a leader of a political party in England. It is true that in the days of Tilak there were also patriotic gentlemen who preferred to achieve independence by a circuitous and slow path and there were alsowho built up their career on the sacrifices of their fellow citizens. But then there were no political parties in the sense they are in England and are now in India. Tilak was not an ordinary politician indulging in party politics to build up his career. His lifetime was spent in educating the people with a view to realise his vision. To class him as a party politician with a view to import the English law in the construction of the trust deed is, to say the least, to ignore the facts of history and to belittle the great contribution made by Tilak in the countrys cause. His work must be evaluated not on party but on a national level. It is, therefore, clear that the object of Tilak, after he took over the newspapers, was to work for the regeneration of the country, and he thought, and rightly too, that national education through newspapers and thereby making people alive to their political rights was the most important item in the uplift of the country. The trust execute to perpetuate the said object is clearly a trust for general public utility within the meaning of S. 9 (4) of the Act.44. But it is said that the objects are not of public utility, because some of the English Judges-for whom I have the greatest respect-said that political purposes are not charitable purposes. Ordinarily I would have been inclined to drop any reference to English decisions had it not been for the copious citations at the Bar. I would, therefore, briefly notice the decisions cited at the Bar defining "charitable purposes" under the English law on the basis of which an attempt is made to curtail or circumscribe the scope of cl. (4) of S. 9 of the Act. In this connection it is necessary to bear in mind the caution administered by the decisions of highest authority when similar attempts were made to import English law in he matter of construction of Indian statutes. | 1 | 22,023 | 4,521 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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laws to change them at their pleasure, when circumstances may seem to require. With the wisdom of the proposed change the courts are not concerned. We perform our duty in determining whether or not the method adopted to make the change violates established law. In the present case we find no apparent intent to violate any law. On the contrary, the trust specifically requires its objects to be accomplished by lawful means."Now, let me consider some of the provisions of the Act which are in direct conflict with some of the tests laid down by the English decisions to ascertain whether a purpose is charitable or not. The first is S. 9(4) which says that a charitable purpose includes the advancement of any other object of general public utility. I have already jointed out the wide amplitude of these words. Section 11 says:"A public trust created for purposes some of which are charitable or religious and some are not shall not be deemed to be void in respect to the charitable or religious purpose, only on the ground that it is void with respect to the non-charitable or non-religious purpose."While in England if a trust was created for a charitable or a non-charitable purpose, the entire trust would be void, as the trustees could administer the trust exclusively for the benefit of non-charitable purposes, under S. 11 of the Act the law is changed in regard to that matter. Section 55 introduces a cy pres doctrine which is wider in scope than the doctrine is generally understood in that it enables the court, inter alia, under certain circumstances, if it is not in public interest, expedient, practicable, desirable, necessary or proper to carry out wholly or partially the original intention of the author of the public trust or the object for which the public trust was created, to apply the same to any other object. The Act widens the scope of a charitable purpose as understood in the English law, recognizes the validity of the trust though the purposes include both charitable and non-charitable, and enables the court, under certain circumstances, to divert the trust to other charitable purposes not intended by the author of the trust. The liberal spirit adopted by the Act does not permit a narrow interpretation of a charitable purpose accepted by the English courts under different circumstances.51. Let me now summarize my views on the subject : (1) The English decisions are based upon a pragmatic approach to the problems that arose before them, having regard to the historical development of the law of charities in that country; there is no common thread discernible in the large volume of English decisions. (2)Under the Act, unlike in England, the advancement of the object of common public utility is declared to be a charitable purpose, and it is not permissible to curtail its scope with reference to English decisions. (3) The expression "object of general public utility" is very comprehensive and it includes all purposes, whether political or otherwise, provided it is an object of general public utility.52. The English decisions, therefore, afford no help to construe S. 9 of the Act to ascertain whether a purpose is charitable or not under the Indian law.53. For the reasons I have given, I hold, without any hesitation that the purpose of the trust in the present case is a charitable purpose within the meaning of S. 9 of the Act.54. Even on that basis it is contended that a trust giving power to a trustee to spend the trust funds on charitable and non-charitable objects is void and as the High Court held that the second object of the trust was non-charitable the entire trust must fail. This argument ignores the distinction between a trust deed empowering a trustee to spend on a charitable object or a non-charitable object and a trust deed empowering him to spend on a charitable object and a non-charitable object. In Halsburys Laws of England, 3rd Edn. Vol. 4, at p. 272, the following passage appears:"When a testator gives funds to be applied partly for objects which are charitable and partly for objects which either are not charitable or fail, but does not specify the proportions in which the funds are to be applied for the different objects the Court will make an apportionment.""Again, where a fund is given for several objects, some charitable and some non-charitable or illegal, there being a clear intention to devote some part to the charitable objects, if it can be ascertained what are the proper proportions to be attributed to the several objects, the Court directs an inquiry, but if from the nature of the gift it appears impracticable to fix the proportions, the Court divides the fund equally between the different objects."This passage is supported by decisions relied upon by he author. It is not necessary to discuss them in detail, as the learned counsel for the appellant has not questioned the correctness of the said proposition. In this view, it is not necessary to consider whether S. 11 of the Act has retrospective operation. Learned counsel for the appellant attempted to argue that S. 55 of the Act offends his right of reversion to the property which is the subject-matter of the trust. The question of the validity of the said section does not arise in the present case. The only question is whether it is the duty of the trustees of the trust to make an application for registration of the said trust. As I have held that the trust is a public trust within the meaning of S. 9 of the Act, under S. 18 thereof, the said trust has to be registered in the manner prescribed therein. Questions such as the extent of the trust, the scope of the doctrine of cy pres, are all foreign to the present inquiry. I do not propose to express any opinion on the same.55. In the result, the appeal fails and is dismissed with costs.
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same, as seen from the public life and activities of Tilak, particularly in the matter of his conduct of the two newspapers.(3) The two newspapers were designed by the Lokmanya to be the vehicle for educating the mass of the population to a sense of the grievances suffered by them under foreign rulers, with a view to rouse them to political action and demand a share in Government. He was a full-time politician. At a time when Indian men of learning were eulogising British rule and the masses were inert and lethargic and oblivious to their degradation, Lokmanya, by his propaganda and leadership sought to infuse into the minds of the masses self-respect and courage. By his writings in these papers, Tilak demonstrated to the people that the foreign rule rested on no moral foundation and when he made people realise this, the achievement of freedom became assured. That is why Tilak has been aptly termed the father of Indias freedom struggle.(4)The life mission of Lokmanya which he sought to achieve and achieved through the two newspapers, and which is set out in the trust-deed as the object for which the trust was founded was, therefore, a political purpose.(5) A political purpose is not charitable under S. 9 of the Act and hence, the Trust was not required to be registered under S. 18 of the Act, and the order of the Assistant Charity Commissioner confirmed by the Charity Commissioner, directing the Trust to be registered was erroneous and should have been set aside by the District Court of Poona in Miscellaneous Application No. 325 ofwas a great savant. He lived and worked when India was a servile country. He had a great vision and that was India as a united, strong, prosperous, civilized and democratic country. He was not a person embroiled in party-politics, trying to build up a political career for himself. He lived, worked and died for a national cause. His activities and ideals were mostly, though not wholly, reflected in the two newspapers. "The Kesari" and "The Mahratta", two leading newspapers of the day which propagated his views not only throughout the Marathi speaking part of the country but also in other parts thereof. Through his papers, he gave information on various subjects, literary, political, social, moral, economic, etc. His papers created an atmosphere for constructive work in that part of the country and elsewhere, and supported many movements calculated to improve the conditions of the people. Subjects as varied as famine relief, prostitution, swadesi, plague relief, Bengal partition, Home-rule movement, national integration, and such other political and social movements, found powerful expression in the said newspapers. In short, his papers pleaded for the social, political, cultural and economic regeneration of the country. They were not confined to the narrow ideal of just replacing the foreign government by a national one, though it was an important step in the regeneration of the country.42. Can the objects of this great man, reflected, propagated and pursued by the said papers, be characterised as those not in the general public interest? To say that the object of a trust for a village school, hospital or choultry is one of general public utility and to deny that character to a trust created for pursuing the objects of Tilak, that is, the regeneration of the country, is to make a mockery of the section. What trust could be more in the interest of the public than that created to educate them in their political rights so that they could know their rights, understand and appreciate the problems of their country, and contribute their mite to its progress and prosperity.?43. It is said that Tilak was a leader of only one of the parties and his activities were analogous to those of a leader of a political party in England. It is true that in the days of Tilak there were also patriotic gentlemen who preferred to achieve independence by a circuitous and slow path and there were alsowho built up their career on the sacrifices of their fellow citizens. But then there were no political parties in the sense they are in England and are now in India. Tilak was not an ordinary politician indulging in party politics to build up his career. His lifetime was spent in educating the people with a view to realise his vision. To class him as a party politician with a view to import the English law in the construction of the trust deed is, to say the least, to ignore the facts of history and to belittle the great contribution made by Tilak in the countrys cause. His work must be evaluated not on party but on a national level. It is, therefore, clear that the object of Tilak, after he took over the newspapers, was to work for the regeneration of the country, and he thought, and rightly too, that national education through newspapers and thereby making people alive to their political rights was the most important item in the uplift of the country. The trust execute to perpetuate the said object is clearly a trust for general public utility within the meaning of S. 9 (4) of the Act.44. But it is said that the objects are not of public utility, because some of the English Judges-for whom I have the greatest respect-said that political purposes are not charitable purposes. Ordinarily I would have been inclined to drop any reference to English decisions had it not been for the copious citations at the Bar. I would, therefore, briefly notice the decisions cited at the Bar defining "charitable purposes" under the English law on the basis of which an attempt is made to curtail or circumscribe the scope of cl. (4) of S. 9 of the Act. In this connection it is necessary to bear in mind the caution administered by the decisions of highest authority when similar attempts were made to import English law in he matter of construction of Indian statutes.
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M. Mayandi Vs. Director, Tamil Nadu State Transport Corporation | 1. The appellant who was employed as a driver in Tamil Nadu State Transport Department in the city of Madras was suspended from duty pending inquiry into certain charges leveled against him following an incident that took place on August 19, 1970. The charges were that he -1. refused to pick up intending passengers;2. refused to proceed further on the line in spite of request by Checking Inspector and by the duty conductor;3. stopped other buses at Safire Theatre in F. No. A-583 of Route 18 and F. No. A-990 of Route 11; and4. misbehaved towards the Checking Inspector.2. The appellants explanation to the charges was not found satisfactory by the authorities and an inquiry was held by the Traffic Superintendent attached to the Office of the State Transport Department by his order dated July 5, 1972 dismissed the appellant from service. The appeal taken by the appellant to the Director of Tamil Nadu State Transport Department also failed. The appellant thereafter filed a writ petition in the Madras High Court challenging the order of dismissal. A single Judge of the High Court found on charge 1 and 2 that on the facts of the case the order of the Checking Inspector that the appellant refused to obey would have exposed the appellant to an offence punishable under Section123 of the Motor Vehicles Act and that he was therefore, justified in disobeying that order. The learned Judge held that charges 1 and 2 were unsustainable. He also held on a consideration of the evidence of the drivers of the two buses which were alleged to have been stopped by the appellant that there was no material to support charges 3 and 4 and the said charges could not be taken to have been proved. The single Judge, accordingly allowed the writ petition an set aside the order of dismissal of the appellant.3. On appeal by the Director of Tamil Nadu State Transport Department, a Division Bench of the High Court set aside the order of the single Judge. Before the Division Bench, the correctness of the finding recorded by the single Judge on charges 1 and 2 was not questioned. On charges 3 and 4, the Division Bench thought that there was material to substantiate the said charges. The view taken by the Division Bench appears to rest on the answers given by the Checking Inspector to certain questions put to him on cross-examination. In reply to one question the Checking Inspector said : "You had stopped the other two buses". It was not noted, however, that the drivers of the said buses had denied that they were made to stop their buses by the appellant. This was pointed out by the single Judge in his Judgment. The other piece of evidence on which the Division Bench relies is the following given by the Checking Inspector to another question:"That you had created a scene and had held up vehicles were witnessed by Flying Squad sub-Inspector and other sub-Inspectors and traffic constables. Since you had refused to take vehicle on line, they had difficulty in clearing the traffic jam."4. The traffic jam was due to the refusal of the appellant to proceed with a bus which was overcrowded in violation of the provisions of the Motor Vehicles Act. As already stated the correctness of the finding on charges 1 and 2 was not questioned before the Division Bench. The conduct of the appellant in refusing to move his bus has been held to have been justified. | 1[ds]The view taken by the Division Bench appears to rest on the answers given by the Checking Inspector to certain questions put to him onIn reply to one question the Checking Inspector said : "You had stopped the other two buses". It was not noted, however, that the drivers of the said buses had denied that they were made to stop their buses by the appellant. This was pointed out by the single Judge in his Judgment. The other piece of evidence on which the Division Bench relies is the following given by the Checking Inspector to anothert you had created a scene and had held up vehicles were witnessed by Flying Squadors and traffic constables. Since you had refused to take vehicle on line, they had difficulty in clearing the traffic jam.The traffic jam was due to the refusal of the appellant to proceed with a bus which was overcrowded in violation of the provisions of the Motor Vehicles Act. As already stated the correctness of the finding on charges 1 and 2 was not questioned before the Division Bench. The conduct of the appellant in refusing to move his bus has been held to have been justified. | 1 | 632 | 215 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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1. The appellant who was employed as a driver in Tamil Nadu State Transport Department in the city of Madras was suspended from duty pending inquiry into certain charges leveled against him following an incident that took place on August 19, 1970. The charges were that he -1. refused to pick up intending passengers;2. refused to proceed further on the line in spite of request by Checking Inspector and by the duty conductor;3. stopped other buses at Safire Theatre in F. No. A-583 of Route 18 and F. No. A-990 of Route 11; and4. misbehaved towards the Checking Inspector.2. The appellants explanation to the charges was not found satisfactory by the authorities and an inquiry was held by the Traffic Superintendent attached to the Office of the State Transport Department by his order dated July 5, 1972 dismissed the appellant from service. The appeal taken by the appellant to the Director of Tamil Nadu State Transport Department also failed. The appellant thereafter filed a writ petition in the Madras High Court challenging the order of dismissal. A single Judge of the High Court found on charge 1 and 2 that on the facts of the case the order of the Checking Inspector that the appellant refused to obey would have exposed the appellant to an offence punishable under Section123 of the Motor Vehicles Act and that he was therefore, justified in disobeying that order. The learned Judge held that charges 1 and 2 were unsustainable. He also held on a consideration of the evidence of the drivers of the two buses which were alleged to have been stopped by the appellant that there was no material to support charges 3 and 4 and the said charges could not be taken to have been proved. The single Judge, accordingly allowed the writ petition an set aside the order of dismissal of the appellant.3. On appeal by the Director of Tamil Nadu State Transport Department, a Division Bench of the High Court set aside the order of the single Judge. Before the Division Bench, the correctness of the finding recorded by the single Judge on charges 1 and 2 was not questioned. On charges 3 and 4, the Division Bench thought that there was material to substantiate the said charges. The view taken by the Division Bench appears to rest on the answers given by the Checking Inspector to certain questions put to him on cross-examination. In reply to one question the Checking Inspector said : "You had stopped the other two buses". It was not noted, however, that the drivers of the said buses had denied that they were made to stop their buses by the appellant. This was pointed out by the single Judge in his Judgment. The other piece of evidence on which the Division Bench relies is the following given by the Checking Inspector to another question:"That you had created a scene and had held up vehicles were witnessed by Flying Squad sub-Inspector and other sub-Inspectors and traffic constables. Since you had refused to take vehicle on line, they had difficulty in clearing the traffic jam."4. The traffic jam was due to the refusal of the appellant to proceed with a bus which was overcrowded in violation of the provisions of the Motor Vehicles Act. As already stated the correctness of the finding on charges 1 and 2 was not questioned before the Division Bench. The conduct of the appellant in refusing to move his bus has been held to have been justified.
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The view taken by the Division Bench appears to rest on the answers given by the Checking Inspector to certain questions put to him onIn reply to one question the Checking Inspector said : "You had stopped the other two buses". It was not noted, however, that the drivers of the said buses had denied that they were made to stop their buses by the appellant. This was pointed out by the single Judge in his Judgment. The other piece of evidence on which the Division Bench relies is the following given by the Checking Inspector to anothert you had created a scene and had held up vehicles were witnessed by Flying Squadors and traffic constables. Since you had refused to take vehicle on line, they had difficulty in clearing the traffic jam.The traffic jam was due to the refusal of the appellant to proceed with a bus which was overcrowded in violation of the provisions of the Motor Vehicles Act. As already stated the correctness of the finding on charges 1 and 2 was not questioned before the Division Bench. The conduct of the appellant in refusing to move his bus has been held to have been justified.
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VISHAL ASHOK THORAT Vs. RAJESH SHRIRAMBAPU FATE | may be laid on different grounds. There may be cases where seniority is claimed against individual person on specific facts, it might be necessary to implead those persons but there may be cases where non-impleadment of person in seniority dispute may not be fatal. The present is a case of recruitment and selection, where after participation in the selection process, 832 candidates were finally selected and were included in the select list. By inclusion in the select list, the selected candidate had acquired right of consideration for appointment, which could not have been taken away in the writ petition filed by respondent No.1, where he could not have challenged the advertisement Nos.2 of 2017 and 48 of 2017.37. Shri Naphade further submitted that by mere inclusion of the name in the select list, no right has accrued to the selected candidate for appointment. It may be true that by mere inclusion in the select list, there is no right of appointment but by inclusion in the select list the candidate is entitled for consideration for his appointment, which could not have been denied without there being any valid reason. Thus, we find force in the submission of the appellant that in the present case, the High Court could not have modified the select list without the selected candidates, whose interest was jeopardized by the High Court being impleaded in the writ petition. Thus, directions issued by the High Court in paragraph 51 are not sustainable also in view of the fact that respondent No.1 had not impleaded the selected candidates in his writ petition.38. Although, learned counsel for the parties have made elaborate submissions on the validity of Rule 3(iii) proviso, Rule 3(iv) proviso and Rule 4 but in the facts of the present case, where writ petitioner, i.e., respondent No.1 was held by the High Court not competent to challenge the advertisement Nos.2 of 2017 and 48 of 2017, the High Court committed error in proceeding to examine the validity of the Rules, 2016. The challenge to Rules, 2016 in the background of the present case ought not to have been allowed to be raised at the instance of the writ petitioner. The respondent No.1, who did not participate in the selection and the High Court had specifically rejected the entitlement of the respondent No.1 to challenge the advertisement Nos.2 of 2017 and 48 of 2017, as held in paragraph 48 of the judgment, permitting him to challenge the validity of the Rules in reference to the same advertisements is nothing but indirectly challenging something which could not be challenged directly by the respondent No.1. The High Court in the facts of the present case, where respondent No.1 was not allowed to challenge the advertisements or the select list should not have been allowed to challenge the Rules, 2016 in so far as the selection in question was concerned. The writ petition filed by respondent No.1 was not styled or framed as PIL. It is well settled that with regard to service jurisprudence, PIL are not entertained. In Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and others, (2013) 4 SCC 465 , this Court has reiterated that PIL should not be entertained in service matter. In paragraph 15 following has been laid down:?13. Even as regards the filing of a Public Interest Litigation, this Court has consistently held that such a course of action is not permissible so far as service matters are concerned. (Vide: Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors., AIR 1999 SC 114 ; Dattaraj Natthuji Thaware v. State of Maharashtra, AIR 2005 SC 540 ; and Neetu v. State of Punjab and Ors., AIR 2007 SC 758 )?39. A perusal of the impugned judgment indicates that the High Court was influenced by the submission of the appellant that loss being caused to the public revenue by appointment of Assistant Inspector of Motor Vehicles, who did not fulfill qualification as laid down in notification dated 12.06.1989, the High Court has virtually entertained the writ petition as PIL. Following observations made by the High Court in paragraph 29 clearly indicate that the High Court proceeded to treat the writ petition as PIL, although, it relates to condition of service of Assistant Inspector of Motor Vehicles. In paragraph 29 following has been observed by the High Court:?We are here, satisfied that the loss being caused to public revenue cannot be ignored and challenge cannot be seen as a grievance pertaining to a service condition. Contention that it cannot, therefore, be seen as public interest litigation, is misconceived. Its larger impact on Society due to hole in taxpayer?s money and omission to make requisite service available to the citizens, all necessitate cognizance by any writ petition.?40. We, thus, are of the view that the High Court ought not to have entertained the writ petition, in which challenge was to the Rules, 2016, which were clearly in reference to recruitment under advertisement Nos.2 of 2017 and 48 of 2017. When the respondent No.1, i.e., writ petitioner was held not entitled to challenge the advertisement Nos.2 of 2017 and 48 of 2017 at his instance, proceeding to entertain the challenge to the validity of the Rules and to strike down the Rules and modifying the select list dated 31.03.2018 was clearly impermissible. The High Court, thus, fell in error in issuing directions in paragraph 51. We are also of the view that in the facts of the present case, it was not necessary for the High Court to enter into the validity of Rule 3(iii), Rule 3(iv) and Rule 4 of the Rules, 2016. We having taken the view that directions issued by the High Court in paragraph No.51 are not sustainable, for the purpose of this case, it is not necessary for us to dwelve upon various submissions raised with regard to Rules, 2016, which according to us was not required to be gone into by the High Court in the background of the present case. | 1[ds]32. The direction in paragraph 51 of the impugned judgment clearly directed the select list to be re-drawn by including only those candidates who fulfill the requirements of practical experience and driving licence as prescribed by the Central Government i.e. as substantive part of Rule 3(iii) and Rule 3(iv) of Rules, 2016, which the High Court could not do in view of its finding in paragraph 48 of the judgment. When a person is not permitted to challenge the advertisements and process of recruitment, the select list which is outcome of such recruitment process cannot be interfered at the instance of such person. The High Court, thus, clearly erred in issuing direction in paragraph 51 to modify the select list dated 31.03.2018.33. One more submission raised by the learned counsel for the appellant in civil appeal filed by Vishal Ashok Thorat needs to be noticed. The submission of the appellant is that respondent No.1 in his Writ Petition No.1270 of 2018 did not implead any of the selected candidates out of the list of 832. No selected candidate having been impleaded by respondent No.1, the High Court erred in issuing direction to modify and review the select list. The direction of the High Court in paragraph 51 is clearly against the interest of the appellants, who as per direction shall go out of the select list, the select list having been published on 31.03.2018, i.e., much before the date when respondent No.1 filed application for amendment in the writ petition for challenging the advertisement Nos.2 of 2017 and 48 of 2017, he ought to have impleaded the selected candidates whose names were already published by the MPSC. Respondent No.1 without bringing the selected candidates on record could not have obtained any order adverse to the selected candidates.This Court in Public Service Commission, Uttaranchal vs. Mamta Bisht and others, (2010) 12 SCC 204 , laid down that writ petition could not have been entertained against the selected candidate when he has not been a party in the writ petition. In the above case, Public Service Commission invited applications for the posts of Civil Judge (Junior Division. The respondent No.1 was not included in the select list. The respondent No.1 filed a writ petition claiming that she ought to have been selected in the reserved category being a woman of Uttaranchal. The claim of respondent No.1 that she was entitled to have been offered the appointment giving her the benefit of horizontal reservation for Uttaranchal women was accepted by the High Court. Challenging the said judgment of the High Court, the appeals were filed by the Public Service Commission, Uttaranchal as well as State of Uttaranchal. This Court set aside the judgment of the High court on the ground that the selected candidate in reserved category vacancy was a necessary party.The judgment of this Court in A. Janardhana relied by Shri Naphade is not applicable in the facts of the present case. In the above case, this Court was considering the challenge to the seniority list. This Court has noticed in paragraph 36 that the appellant had not claimed seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention was that criteria adopted by the Union Government in drawing up the seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing already drawn up valid list. Thus, the relief is claimed against the Union Government and not against any particular individual. This Court by making the above observation has repelled the submission that relief could not have been granted without impleading those who were affected in the seniority list. The claim pertaining to seniority may be laid on different grounds. There may be cases where seniority is claimed against individual person on specific facts, it might be necessary to implead those persons but there may be cases where non-impleadment of person in seniority dispute may not be fatal. The present is a case of recruitment and selection, where after participation in the selection process, 832 candidates were finally selected and were included in the select list. By inclusion in the select list, the selected candidate had acquired right of consideration for appointment, which could not have been taken away in the writ petition filed by respondent No.1, where he could not have challenged the advertisement Nos.2 of 2017 and 48 of 2017.37.Shri Naphade further submitted that by mere inclusion of the name in the select list, no right has accrued to the selected candidate for appointment.It may be true that by mere inclusion in the select list, there is no right of appointment but by inclusion in the select list the candidate is entitled for consideration for his appointment, which could not have been denied without there being any valid reason. Thus, we find force in the submission of the appellant that in the present case, the High Court could not have modified the select list without the selected candidates, whose interest was jeopardized by the High Court being impleaded in the writ petition. Thus, directions issued by the High Court in paragraph 51 are not sustainable also in view of the fact that respondent No.1 had not impleaded the selected candidates in his writ petition.38. Although, learned counsel for the parties have made elaborate submissions on the validity of Rule 3(iii) proviso, Rule 3(iv) proviso and Rule 4 but in the facts of the present case, where writ petitioner, i.e., respondent No.1 was held by the High Court not competent to challenge the advertisement Nos.2 of 2017 and 48 of 2017, the High Court committed error in proceeding to examine the validity of the Rules, 2016. The challenge to Rules, 2016 in the background of the present case ought not to have been allowed to be raised at the instance of the writ petitioner. The respondent No.1, who did not participate in the selection and the High Court had specifically rejected the entitlement of the respondent No.1 to challenge the advertisement Nos.2 of 2017 and 48 of 2017, as held in paragraph 48 of the judgment, permitting him to challenge the validity of the Rules in reference to the same advertisements is nothing but indirectly challenging something which could not be challenged directly by the respondent No.1. The High Court in the facts of the present case, where respondent No.1 was not allowed to challenge the advertisements or the select list should not have been allowed to challenge the Rules, 2016 in so far as the selection in question was concerned. The writ petition filed by respondent No.1 was not styled or framed as PIL. It is well settled that with regard to service jurisprudence, PIL are not entertained.A perusal of the impugned judgment indicates that the High Court was influenced by the submission of the appellant that loss being caused to the public revenue by appointment of Assistant Inspector of Motor Vehicles, who did not fulfill qualification as laid down in notification dated 12.06.1989, the High Court has virtually entertained the writ petition as PIL. Following observations made by the High Court in paragraph 29 clearly indicate that the High Court proceeded to treat the writ petition as PIL, although, it relates to condition of service of Assistant Inspector of Motor Vehicles.We, thus, are of the view that the High Court ought not to have entertained the writ petition, in which challenge was to the Rules, 2016, which were clearly in reference to recruitment under advertisement Nos.2 of 2017 and 48 of 2017. When the respondent No.1, i.e., writ petitioner was held not entitled to challenge the advertisement Nos.2 of 2017 and 48 of 2017 at his instance, proceeding to entertain the challenge to the validity of the Rules and to strike down the Rules and modifying the select list dated 31.03.2018 was clearly impermissible. The High Court, thus, fell in error in issuing directions in paragraph 51. We are also of the view that in the facts of the present case, it was not necessary for the High Court to enter into the validity of Rule 3(iii), Rule 3(iv) and Rule 4 of the Rules, 2016. We having taken the view that directions issued by the High Court in paragraph No.51 are not sustainable, for the purpose of this case, it is not necessary for us to dwelve upon various submissions raised with regard to Rules, 2016, which according to us was not required to be gone into by the High Court in the background of the present case. | 1 | 7,802 | 1,565 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
may be laid on different grounds. There may be cases where seniority is claimed against individual person on specific facts, it might be necessary to implead those persons but there may be cases where non-impleadment of person in seniority dispute may not be fatal. The present is a case of recruitment and selection, where after participation in the selection process, 832 candidates were finally selected and were included in the select list. By inclusion in the select list, the selected candidate had acquired right of consideration for appointment, which could not have been taken away in the writ petition filed by respondent No.1, where he could not have challenged the advertisement Nos.2 of 2017 and 48 of 2017.37. Shri Naphade further submitted that by mere inclusion of the name in the select list, no right has accrued to the selected candidate for appointment. It may be true that by mere inclusion in the select list, there is no right of appointment but by inclusion in the select list the candidate is entitled for consideration for his appointment, which could not have been denied without there being any valid reason. Thus, we find force in the submission of the appellant that in the present case, the High Court could not have modified the select list without the selected candidates, whose interest was jeopardized by the High Court being impleaded in the writ petition. Thus, directions issued by the High Court in paragraph 51 are not sustainable also in view of the fact that respondent No.1 had not impleaded the selected candidates in his writ petition.38. Although, learned counsel for the parties have made elaborate submissions on the validity of Rule 3(iii) proviso, Rule 3(iv) proviso and Rule 4 but in the facts of the present case, where writ petitioner, i.e., respondent No.1 was held by the High Court not competent to challenge the advertisement Nos.2 of 2017 and 48 of 2017, the High Court committed error in proceeding to examine the validity of the Rules, 2016. The challenge to Rules, 2016 in the background of the present case ought not to have been allowed to be raised at the instance of the writ petitioner. The respondent No.1, who did not participate in the selection and the High Court had specifically rejected the entitlement of the respondent No.1 to challenge the advertisement Nos.2 of 2017 and 48 of 2017, as held in paragraph 48 of the judgment, permitting him to challenge the validity of the Rules in reference to the same advertisements is nothing but indirectly challenging something which could not be challenged directly by the respondent No.1. The High Court in the facts of the present case, where respondent No.1 was not allowed to challenge the advertisements or the select list should not have been allowed to challenge the Rules, 2016 in so far as the selection in question was concerned. The writ petition filed by respondent No.1 was not styled or framed as PIL. It is well settled that with regard to service jurisprudence, PIL are not entertained. In Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and others, (2013) 4 SCC 465 , this Court has reiterated that PIL should not be entertained in service matter. In paragraph 15 following has been laid down:?13. Even as regards the filing of a Public Interest Litigation, this Court has consistently held that such a course of action is not permissible so far as service matters are concerned. (Vide: Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors., AIR 1999 SC 114 ; Dattaraj Natthuji Thaware v. State of Maharashtra, AIR 2005 SC 540 ; and Neetu v. State of Punjab and Ors., AIR 2007 SC 758 )?39. A perusal of the impugned judgment indicates that the High Court was influenced by the submission of the appellant that loss being caused to the public revenue by appointment of Assistant Inspector of Motor Vehicles, who did not fulfill qualification as laid down in notification dated 12.06.1989, the High Court has virtually entertained the writ petition as PIL. Following observations made by the High Court in paragraph 29 clearly indicate that the High Court proceeded to treat the writ petition as PIL, although, it relates to condition of service of Assistant Inspector of Motor Vehicles. In paragraph 29 following has been observed by the High Court:?We are here, satisfied that the loss being caused to public revenue cannot be ignored and challenge cannot be seen as a grievance pertaining to a service condition. Contention that it cannot, therefore, be seen as public interest litigation, is misconceived. Its larger impact on Society due to hole in taxpayer?s money and omission to make requisite service available to the citizens, all necessitate cognizance by any writ petition.?40. We, thus, are of the view that the High Court ought not to have entertained the writ petition, in which challenge was to the Rules, 2016, which were clearly in reference to recruitment under advertisement Nos.2 of 2017 and 48 of 2017. When the respondent No.1, i.e., writ petitioner was held not entitled to challenge the advertisement Nos.2 of 2017 and 48 of 2017 at his instance, proceeding to entertain the challenge to the validity of the Rules and to strike down the Rules and modifying the select list dated 31.03.2018 was clearly impermissible. The High Court, thus, fell in error in issuing directions in paragraph 51. We are also of the view that in the facts of the present case, it was not necessary for the High Court to enter into the validity of Rule 3(iii), Rule 3(iv) and Rule 4 of the Rules, 2016. We having taken the view that directions issued by the High Court in paragraph No.51 are not sustainable, for the purpose of this case, it is not necessary for us to dwelve upon various submissions raised with regard to Rules, 2016, which according to us was not required to be gone into by the High Court in the background of the present case.
### Response:
1
### Explanation:
Service Commission, Uttaranchal as well as State of Uttaranchal. This Court set aside the judgment of the High court on the ground that the selected candidate in reserved category vacancy was a necessary party.The judgment of this Court in A. Janardhana relied by Shri Naphade is not applicable in the facts of the present case. In the above case, this Court was considering the challenge to the seniority list. This Court has noticed in paragraph 36 that the appellant had not claimed seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention was that criteria adopted by the Union Government in drawing up the seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing already drawn up valid list. Thus, the relief is claimed against the Union Government and not against any particular individual. This Court by making the above observation has repelled the submission that relief could not have been granted without impleading those who were affected in the seniority list. The claim pertaining to seniority may be laid on different grounds. There may be cases where seniority is claimed against individual person on specific facts, it might be necessary to implead those persons but there may be cases where non-impleadment of person in seniority dispute may not be fatal. The present is a case of recruitment and selection, where after participation in the selection process, 832 candidates were finally selected and were included in the select list. By inclusion in the select list, the selected candidate had acquired right of consideration for appointment, which could not have been taken away in the writ petition filed by respondent No.1, where he could not have challenged the advertisement Nos.2 of 2017 and 48 of 2017.37.Shri Naphade further submitted that by mere inclusion of the name in the select list, no right has accrued to the selected candidate for appointment.It may be true that by mere inclusion in the select list, there is no right of appointment but by inclusion in the select list the candidate is entitled for consideration for his appointment, which could not have been denied without there being any valid reason. Thus, we find force in the submission of the appellant that in the present case, the High Court could not have modified the select list without the selected candidates, whose interest was jeopardized by the High Court being impleaded in the writ petition. Thus, directions issued by the High Court in paragraph 51 are not sustainable also in view of the fact that respondent No.1 had not impleaded the selected candidates in his writ petition.38. Although, learned counsel for the parties have made elaborate submissions on the validity of Rule 3(iii) proviso, Rule 3(iv) proviso and Rule 4 but in the facts of the present case, where writ petitioner, i.e., respondent No.1 was held by the High Court not competent to challenge the advertisement Nos.2 of 2017 and 48 of 2017, the High Court committed error in proceeding to examine the validity of the Rules, 2016. The challenge to Rules, 2016 in the background of the present case ought not to have been allowed to be raised at the instance of the writ petitioner. The respondent No.1, who did not participate in the selection and the High Court had specifically rejected the entitlement of the respondent No.1 to challenge the advertisement Nos.2 of 2017 and 48 of 2017, as held in paragraph 48 of the judgment, permitting him to challenge the validity of the Rules in reference to the same advertisements is nothing but indirectly challenging something which could not be challenged directly by the respondent No.1. The High Court in the facts of the present case, where respondent No.1 was not allowed to challenge the advertisements or the select list should not have been allowed to challenge the Rules, 2016 in so far as the selection in question was concerned. The writ petition filed by respondent No.1 was not styled or framed as PIL. It is well settled that with regard to service jurisprudence, PIL are not entertained.A perusal of the impugned judgment indicates that the High Court was influenced by the submission of the appellant that loss being caused to the public revenue by appointment of Assistant Inspector of Motor Vehicles, who did not fulfill qualification as laid down in notification dated 12.06.1989, the High Court has virtually entertained the writ petition as PIL. Following observations made by the High Court in paragraph 29 clearly indicate that the High Court proceeded to treat the writ petition as PIL, although, it relates to condition of service of Assistant Inspector of Motor Vehicles.We, thus, are of the view that the High Court ought not to have entertained the writ petition, in which challenge was to the Rules, 2016, which were clearly in reference to recruitment under advertisement Nos.2 of 2017 and 48 of 2017. When the respondent No.1, i.e., writ petitioner was held not entitled to challenge the advertisement Nos.2 of 2017 and 48 of 2017 at his instance, proceeding to entertain the challenge to the validity of the Rules and to strike down the Rules and modifying the select list dated 31.03.2018 was clearly impermissible. The High Court, thus, fell in error in issuing directions in paragraph 51. We are also of the view that in the facts of the present case, it was not necessary for the High Court to enter into the validity of Rule 3(iii), Rule 3(iv) and Rule 4 of the Rules, 2016. We having taken the view that directions issued by the High Court in paragraph No.51 are not sustainable, for the purpose of this case, it is not necessary for us to dwelve upon various submissions raised with regard to Rules, 2016, which according to us was not required to be gone into by the High Court in the background of the present case.
|
Delhi Administration Vs. Mohd. Iqbal | Ray, J. 1. This appeal is by certificate under Article 132 (i) and Article 134(i)(c) of the Constitution against the judgment, dated August 2, 1965, of the Circuit Bench of the Punjab High Court at Delhi. The certificate was given on the principal ground whether the respondent had migrated to Pakistan or was a citizen of India. 2. The respondent Mohd. Iqbal was convicted by the Sub-Divisional Magistrate, Delhi, on July 22, 1964, under Section 14 of the Foreigners Act and sentenced to undergo six months rigorous imprisonment. The order was upheld on appeal by the Additional Sessions Judge on April 15, 1965. The circuit Bench of the Punjab High Court set aside the conviction and relying on the decision of this Court in Shanno Devi v. Mangal Sen, (AIR 1961 SC 58 ) held that Mohd. Iqbal had not migrated from India. 3. The respondent being treated as a foreigner of Pakistani national was charged with having entered India on the authority of a visa passport on May 31, 1956 and having further obtained extension of stay in India up to November 30, 1956, from the Delhi Administration and thereafter not having returned to Pakistan and continued unauthorised stay in India in contravention of Rule 7(2) of the Foreigners Orders, 1948 whereby the respondent was required to obtain a residential permit on or before January 5, 1960 from the Registration Officer, Delhi and in contravention of that the respondent continued staying Delhi without obtaining the requisite residential permit on or before January 5, 1960 and was apprehended on October 5, 1961 without possessing any residential permit from the Registration Officer, Delhi and thereby respondent contravened the provisions of Section 7(2) of the Foreigners Act. 4. The prosecution case was that the respondent left India in 1947 and came to India with a Pakistani passport, dated March 27, 1954. The Pakistani passport was valid up to March 26, 1956. On April 27, 1954, the respondent obtained visa at Lahore for entry into India and on May 2, 1954 he applied for extension of the visa up to April 2, 1955. On March 25, 1955 he left India for Pakistan. He came to India for the second time on May 14, 1955 and obtained extension of visa up to May 21, 1956. He went back to Pakistan. He came to India for he third time on May 31, 1956 after having obtained a visa on May 25, 1956. The Delhi Administration returned his Pakistani passport to him in order to enable him to return to Pakistan. He did not leave India. On July 11, 1957 he was arrested for violation of Rules 3 and 6 of the Indian Passport Rules, 1950 for the offence that he had entered India from Pakistan without a passport. On July 31, 1957 he was acquitted. Thereafter he remained in India. 5. The charge in the present case was framed in the year 1960 and it was on the ground that the was required to obtain the residential permit on or before January 5, 1960 and that in contravention thereof he continued to stay at Delhi without obtaining the requisite residential permit on or before January 5, 1960 and was apprehended on October 5, 1960, without possessing any residential permit. It may be stated here that in 1959 an amendment was made in Paragraph 7(2) of the Foreigners Order of 1948, whereby all foreigners were required to obtain residential permits by January 5, 1960.6. for the appellant contended that the respondent came to India on a Pakistani passport in which he was described as a Pakistani national and he overstated after the expiry of visa and in spite of being required to obtain residential permit from the Registration Officer, Delhi, he continued to stay in this country and thereby contravened the provisions of Section 7 (2) of the Foreigners Act. 7. The respondent on the other hand contended that there was not mens rea and when he was arrested on October 5, 1961, there was no offence on the authority of the decision of this Court in Shanno Devi v. Mangal Sen (supra), because the respondent had not migrated from India, and, finally, that the evidence was overwhelming that he left India in 1953 and therefore there was renunciation of citizenship. 8. This Court in Kulathil Mammoo v. The State of Kerala, ((1966) 3 SCR 706 ) held that in Shanno Devis case (supra), the word migrated had received the narrow connotation of going from one place to another with the intention of residing permanently in the latter place, but in its wider connotation it meant going from one place to another whether or not with the intention of permanent residence in the latter place. This Court gave the word migrated in Article 7 of the Constitution that wider connotation and referred to migraton to Pakistan after March 1, 1947 in that case. 9. The present case falls within a short compass. The charge is that by failing to obtain a residential permit the respondent contravened the provisions of Rule 7(2) of the Foreigners Order. His failure to obtain the residential permit as well as his contravention of the Foreigners Act suffices to hold that not only he made mens rea but he was guilty of an offence in contravention of Rule 7 (2) of the Foreigners Order, 1948 and Section 7(2) of the Foreigners Act. 10. Counsel for the respondent invited this Court to re-assess the facts and to come to the conclusion that he was in India up to 1953 and therefore he merely renounced the citizenship and that when he returned to India, his citizenship revived. We are unable to hold so on the facts. 11. The Magistrates Court correctly held on he facts that the respondent had migrated to Pakistan. | 1[ds]8. This Court in Kulathil Mammoo v. The State of Kerala, ((1966) 3 SCR 706 ) held that in Shanno Devis case (supra), the word migrated had received the narrow connotation of going from one place to another with the intention of residing permanently in the latter place, but in its wider connotation it meant going from one place to another whether or not with the intention of permanent residence in the latter place. This Court gave the word migrated in Article 7 of the Constitution that wider connotation and referred to migraton to Pakistan after March 1, 1947 in that case9. The present case falls within a short compass. The charge is that by failing to obtain a residential permit the respondent contravened the provisions of Rule 7(2) of the Foreigners Order. His failure to obtain the residential permit as well as his contravention of the Foreigners Act suffices to hold that not only he made mens rea but he was guilty of an offence in contravention of Rule 7 (2) of the Foreigners Order, 1948 and Section 7(2) of the Foreigners Act10. Counsel for the respondent invited this Court tos the facts and to come to the conclusion that he was in India up to 1953 and therefore he merely renounced the citizenship and that when he returned to India, his citizenship revived.We are unable to hold so on the facts11. The Magistrates Court correctly held on he facts that the respondent had migrated to Pakistan. | 1 | 1,099 | 279 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
Ray, J. 1. This appeal is by certificate under Article 132 (i) and Article 134(i)(c) of the Constitution against the judgment, dated August 2, 1965, of the Circuit Bench of the Punjab High Court at Delhi. The certificate was given on the principal ground whether the respondent had migrated to Pakistan or was a citizen of India. 2. The respondent Mohd. Iqbal was convicted by the Sub-Divisional Magistrate, Delhi, on July 22, 1964, under Section 14 of the Foreigners Act and sentenced to undergo six months rigorous imprisonment. The order was upheld on appeal by the Additional Sessions Judge on April 15, 1965. The circuit Bench of the Punjab High Court set aside the conviction and relying on the decision of this Court in Shanno Devi v. Mangal Sen, (AIR 1961 SC 58 ) held that Mohd. Iqbal had not migrated from India. 3. The respondent being treated as a foreigner of Pakistani national was charged with having entered India on the authority of a visa passport on May 31, 1956 and having further obtained extension of stay in India up to November 30, 1956, from the Delhi Administration and thereafter not having returned to Pakistan and continued unauthorised stay in India in contravention of Rule 7(2) of the Foreigners Orders, 1948 whereby the respondent was required to obtain a residential permit on or before January 5, 1960 from the Registration Officer, Delhi and in contravention of that the respondent continued staying Delhi without obtaining the requisite residential permit on or before January 5, 1960 and was apprehended on October 5, 1961 without possessing any residential permit from the Registration Officer, Delhi and thereby respondent contravened the provisions of Section 7(2) of the Foreigners Act. 4. The prosecution case was that the respondent left India in 1947 and came to India with a Pakistani passport, dated March 27, 1954. The Pakistani passport was valid up to March 26, 1956. On April 27, 1954, the respondent obtained visa at Lahore for entry into India and on May 2, 1954 he applied for extension of the visa up to April 2, 1955. On March 25, 1955 he left India for Pakistan. He came to India for the second time on May 14, 1955 and obtained extension of visa up to May 21, 1956. He went back to Pakistan. He came to India for he third time on May 31, 1956 after having obtained a visa on May 25, 1956. The Delhi Administration returned his Pakistani passport to him in order to enable him to return to Pakistan. He did not leave India. On July 11, 1957 he was arrested for violation of Rules 3 and 6 of the Indian Passport Rules, 1950 for the offence that he had entered India from Pakistan without a passport. On July 31, 1957 he was acquitted. Thereafter he remained in India. 5. The charge in the present case was framed in the year 1960 and it was on the ground that the was required to obtain the residential permit on or before January 5, 1960 and that in contravention thereof he continued to stay at Delhi without obtaining the requisite residential permit on or before January 5, 1960 and was apprehended on October 5, 1960, without possessing any residential permit. It may be stated here that in 1959 an amendment was made in Paragraph 7(2) of the Foreigners Order of 1948, whereby all foreigners were required to obtain residential permits by January 5, 1960.6. for the appellant contended that the respondent came to India on a Pakistani passport in which he was described as a Pakistani national and he overstated after the expiry of visa and in spite of being required to obtain residential permit from the Registration Officer, Delhi, he continued to stay in this country and thereby contravened the provisions of Section 7 (2) of the Foreigners Act. 7. The respondent on the other hand contended that there was not mens rea and when he was arrested on October 5, 1961, there was no offence on the authority of the decision of this Court in Shanno Devi v. Mangal Sen (supra), because the respondent had not migrated from India, and, finally, that the evidence was overwhelming that he left India in 1953 and therefore there was renunciation of citizenship. 8. This Court in Kulathil Mammoo v. The State of Kerala, ((1966) 3 SCR 706 ) held that in Shanno Devis case (supra), the word migrated had received the narrow connotation of going from one place to another with the intention of residing permanently in the latter place, but in its wider connotation it meant going from one place to another whether or not with the intention of permanent residence in the latter place. This Court gave the word migrated in Article 7 of the Constitution that wider connotation and referred to migraton to Pakistan after March 1, 1947 in that case. 9. The present case falls within a short compass. The charge is that by failing to obtain a residential permit the respondent contravened the provisions of Rule 7(2) of the Foreigners Order. His failure to obtain the residential permit as well as his contravention of the Foreigners Act suffices to hold that not only he made mens rea but he was guilty of an offence in contravention of Rule 7 (2) of the Foreigners Order, 1948 and Section 7(2) of the Foreigners Act. 10. Counsel for the respondent invited this Court to re-assess the facts and to come to the conclusion that he was in India up to 1953 and therefore he merely renounced the citizenship and that when he returned to India, his citizenship revived. We are unable to hold so on the facts. 11. The Magistrates Court correctly held on he facts that the respondent had migrated to Pakistan.
### Response:
1
### Explanation:
8. This Court in Kulathil Mammoo v. The State of Kerala, ((1966) 3 SCR 706 ) held that in Shanno Devis case (supra), the word migrated had received the narrow connotation of going from one place to another with the intention of residing permanently in the latter place, but in its wider connotation it meant going from one place to another whether or not with the intention of permanent residence in the latter place. This Court gave the word migrated in Article 7 of the Constitution that wider connotation and referred to migraton to Pakistan after March 1, 1947 in that case9. The present case falls within a short compass. The charge is that by failing to obtain a residential permit the respondent contravened the provisions of Rule 7(2) of the Foreigners Order. His failure to obtain the residential permit as well as his contravention of the Foreigners Act suffices to hold that not only he made mens rea but he was guilty of an offence in contravention of Rule 7 (2) of the Foreigners Order, 1948 and Section 7(2) of the Foreigners Act10. Counsel for the respondent invited this Court tos the facts and to come to the conclusion that he was in India up to 1953 and therefore he merely renounced the citizenship and that when he returned to India, his citizenship revived.We are unable to hold so on the facts11. The Magistrates Court correctly held on he facts that the respondent had migrated to Pakistan.
|
Venus Traders Vs. South Assam Carriers (P.) Limited | 1989 till payment against Respondent No. 1 (hereinafter referred to as Carriers ). The facts as appear from the record are that the Complainant-Appellant has obtained a Open Policy covering `all risks from the said Insurance Company. The Complainant-Appellant, entrusted at Erode one consignment of 135 bags of turmeric to the Carriers vide latters lorry receipt No. 9990 dated 15th April, 1989 for transport to and delivery at Calcutta. The consignee named in the lorry receipt was Canara Bank, Calcutta. As required under the policy a due declaration about that consignment was sent to the Insurance Company named above. The lorry receipt and the connected documents were forwarded to Canara Bank, Calcutta. The ultimate buyer was M/s. Madhup Trading Company, Calcutta. It was to make payment of the value of the goods to the Bank, get endorsement on the lorry receipt in its favour and take delivery of the goods. It appears that the buyer did not make payment to the Bank and thus did not take delivery of the goods. The goods remained lying in the warehouse of the Carriers at Calcutta. The Canara Bank instructed the Carriers to re-book the consignment to Erode. The Complainant-Appellant also asked the Carriers to re-book the consignment to Erode. The Carriers were also told that rebooking and handling charges would be paid. Thereafter, there was some correspondence between the Bank, Carriers and the consignor about the consignment. The Carriers informed the Complainant that they have rebooked the goods to their branch office at Erode. However, when the consignor contacted the Erode Office of the Carriers, the goods were not available. According to the Complainant the goods were never rebooked. Thereupon the consignor, i. e. , the appellant filed a complaint before the State Commission claiming Rs. 83,780/- as the price of the consignment with interest thereon at 24%.( 2 ) THE first respondent i. e. , the Carriers in their counter took objection about the territorial jurisdiction of the State Commission but we are not concerned with it now. On merits, it was pleaded that the goods had reached the destination in time but the buyer did not retire the documents from the bank and failed to take delivery of the goods and thus the goods are still lying in their premises at Calcutta. It was admitted that the complainant through its Bank wanted them to rebook the consignments to Erode but they called upon the bank to indemnify them for freight charges, demurrage charges and loading and unloading charges and as there was no response the goods could not be rebooked. According to the Carriers there was no deficiency or negligence in the rendering of service on their part. ( 3 ) THE second Opposite Party, i. e, the Insurance Company took the plea that the goods had reached Calcutta safely and therefore, their liability as insurer of the consignment came to an end. ( 4 ) THE State Commission referred to the correspondence between the parties and held that the goods have not reached back Erode till now and it is not known what is the fate of the goods and in such circumstances, the Carrier was guilty of deficiency and negligence in the rendering of service and was bound to make good the loss. About the Insurance Company it was held that the insurance was only for the safe transport of goods from Erode to Calcutta and since the goods had reached Calcutta safely and as there was no policy of insurance for the rebooking of goods to Erode, the Insurance Company was not liable under the policy. (It may be mentioned here that according to the suryeyor appointed by the Insurance Company the goods were still lying at Calcutta. The Insurance Company has repudiated the claim on the ground that as per terms of the policy its liability came to an end on the expiry of 7 days after the arrival of the consignment at the destination town. i. e. , on 26th April, 1989 ). In conclusion, as noticed earlier the relief was granted by the State Commission against the Carriers while as against the Insurance Company the complaint was dismissed. ( 5 ) FEELING aggrieved of that order, the consignor has come in appeal against that part of the order by which its complaint was dismissed against the Insurance Company. The appellants case is that now it has been ascertained that the goods had been delivered by the Carriers to Madhup Trading Company at Shalimar itself and the consignment never reached Calcutta at all. Under the West Bengal Sales Tax Act, 1954 without the permit of Commercial Tax Officer of Sales Tax Department no consignment can be moved from Shalimar to Calcutta. (Shalimar appears to be the Railway Terminus for goods.)( 6 ) WE have heard the learned Counsel appearing for both the parties and carefully gone through the records of the case. We are of the opinion that the findings arrived at by the State Commission are unassailable. No evidence was produced by the Appellant before the State Commission to show that the consignment has been delivered by the Carriers to the ultimate buyer without due endorsement on the documents by the Bank who was the consignee. According to the documents produced on the records, the goods reached safely at the destination. There was also correspondence between the parties about rebooking of the goods. In such circumstances the only conclusion that can be drawn is that the goods were not delivered to the ultimate buyer. It is not disputed that the consignment was insured only for safe transport from Erode to Calcutta and when the consignment reached the destination safely the transit risk covered under the policy got terminated after 7 days from the date of the arrival for the consignment at the destination. As noticed above, the surveyor appointed by the Insurance Company has reported that the consignment was still lying at the destination. Hence the Insurance Company is not liable under the policy. | 0[ds]( 6 ) WE have heard the learned Counsel appearing for both the parties and carefully gone through the records of the case. We are of the opinion that the findings arrived at by the State Commission are unassailable. No evidence was produced by the Appellant before the State Commission to show that the consignment has been delivered by the Carriers to the ultimate buyer without due endorsement on the documents by the Bank who was the consignee. According to the documents produced on the records, the goods reached safely at the destination. There was also correspondence between the parties about rebooking of the goods. In such circumstances the only conclusion that can be drawn is that the goods were not delivered to the ultimate buyer. It is not disputed that the consignment was insured only for safe transport from Erode to Calcutta and when the consignment reached the destination safely the transit risk covered under the policy got terminated after 7 days from the date of the arrival for the consignment at the destination. As noticed above, the surveyor appointed by the Insurance Company has reported that the consignment was still lying at the destination. Hence the Insurance Company is not liable under the policy. | 0 | 1,197 | 221 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
1989 till payment against Respondent No. 1 (hereinafter referred to as Carriers ). The facts as appear from the record are that the Complainant-Appellant has obtained a Open Policy covering `all risks from the said Insurance Company. The Complainant-Appellant, entrusted at Erode one consignment of 135 bags of turmeric to the Carriers vide latters lorry receipt No. 9990 dated 15th April, 1989 for transport to and delivery at Calcutta. The consignee named in the lorry receipt was Canara Bank, Calcutta. As required under the policy a due declaration about that consignment was sent to the Insurance Company named above. The lorry receipt and the connected documents were forwarded to Canara Bank, Calcutta. The ultimate buyer was M/s. Madhup Trading Company, Calcutta. It was to make payment of the value of the goods to the Bank, get endorsement on the lorry receipt in its favour and take delivery of the goods. It appears that the buyer did not make payment to the Bank and thus did not take delivery of the goods. The goods remained lying in the warehouse of the Carriers at Calcutta. The Canara Bank instructed the Carriers to re-book the consignment to Erode. The Complainant-Appellant also asked the Carriers to re-book the consignment to Erode. The Carriers were also told that rebooking and handling charges would be paid. Thereafter, there was some correspondence between the Bank, Carriers and the consignor about the consignment. The Carriers informed the Complainant that they have rebooked the goods to their branch office at Erode. However, when the consignor contacted the Erode Office of the Carriers, the goods were not available. According to the Complainant the goods were never rebooked. Thereupon the consignor, i. e. , the appellant filed a complaint before the State Commission claiming Rs. 83,780/- as the price of the consignment with interest thereon at 24%.( 2 ) THE first respondent i. e. , the Carriers in their counter took objection about the territorial jurisdiction of the State Commission but we are not concerned with it now. On merits, it was pleaded that the goods had reached the destination in time but the buyer did not retire the documents from the bank and failed to take delivery of the goods and thus the goods are still lying in their premises at Calcutta. It was admitted that the complainant through its Bank wanted them to rebook the consignments to Erode but they called upon the bank to indemnify them for freight charges, demurrage charges and loading and unloading charges and as there was no response the goods could not be rebooked. According to the Carriers there was no deficiency or negligence in the rendering of service on their part. ( 3 ) THE second Opposite Party, i. e, the Insurance Company took the plea that the goods had reached Calcutta safely and therefore, their liability as insurer of the consignment came to an end. ( 4 ) THE State Commission referred to the correspondence between the parties and held that the goods have not reached back Erode till now and it is not known what is the fate of the goods and in such circumstances, the Carrier was guilty of deficiency and negligence in the rendering of service and was bound to make good the loss. About the Insurance Company it was held that the insurance was only for the safe transport of goods from Erode to Calcutta and since the goods had reached Calcutta safely and as there was no policy of insurance for the rebooking of goods to Erode, the Insurance Company was not liable under the policy. (It may be mentioned here that according to the suryeyor appointed by the Insurance Company the goods were still lying at Calcutta. The Insurance Company has repudiated the claim on the ground that as per terms of the policy its liability came to an end on the expiry of 7 days after the arrival of the consignment at the destination town. i. e. , on 26th April, 1989 ). In conclusion, as noticed earlier the relief was granted by the State Commission against the Carriers while as against the Insurance Company the complaint was dismissed. ( 5 ) FEELING aggrieved of that order, the consignor has come in appeal against that part of the order by which its complaint was dismissed against the Insurance Company. The appellants case is that now it has been ascertained that the goods had been delivered by the Carriers to Madhup Trading Company at Shalimar itself and the consignment never reached Calcutta at all. Under the West Bengal Sales Tax Act, 1954 without the permit of Commercial Tax Officer of Sales Tax Department no consignment can be moved from Shalimar to Calcutta. (Shalimar appears to be the Railway Terminus for goods.)( 6 ) WE have heard the learned Counsel appearing for both the parties and carefully gone through the records of the case. We are of the opinion that the findings arrived at by the State Commission are unassailable. No evidence was produced by the Appellant before the State Commission to show that the consignment has been delivered by the Carriers to the ultimate buyer without due endorsement on the documents by the Bank who was the consignee. According to the documents produced on the records, the goods reached safely at the destination. There was also correspondence between the parties about rebooking of the goods. In such circumstances the only conclusion that can be drawn is that the goods were not delivered to the ultimate buyer. It is not disputed that the consignment was insured only for safe transport from Erode to Calcutta and when the consignment reached the destination safely the transit risk covered under the policy got terminated after 7 days from the date of the arrival for the consignment at the destination. As noticed above, the surveyor appointed by the Insurance Company has reported that the consignment was still lying at the destination. Hence the Insurance Company is not liable under the policy.
### Response:
0
### Explanation:
( 6 ) WE have heard the learned Counsel appearing for both the parties and carefully gone through the records of the case. We are of the opinion that the findings arrived at by the State Commission are unassailable. No evidence was produced by the Appellant before the State Commission to show that the consignment has been delivered by the Carriers to the ultimate buyer without due endorsement on the documents by the Bank who was the consignee. According to the documents produced on the records, the goods reached safely at the destination. There was also correspondence between the parties about rebooking of the goods. In such circumstances the only conclusion that can be drawn is that the goods were not delivered to the ultimate buyer. It is not disputed that the consignment was insured only for safe transport from Erode to Calcutta and when the consignment reached the destination safely the transit risk covered under the policy got terminated after 7 days from the date of the arrival for the consignment at the destination. As noticed above, the surveyor appointed by the Insurance Company has reported that the consignment was still lying at the destination. Hence the Insurance Company is not liable under the policy.
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Chetumal Vs. State of Madhya Pradesh and Another | CHINNAPPA REDDY, J.1. Part of the sample of groundnut oil purchased by the Food Inspector from the appellant was found to be adulterated by the Public Analyst. According to the report of the Public Analyst the Bytyro-refractometer reading at 40 degree C was 57.5 instead of the prescribed standard, "54.0 to 57.1." The appellant challenged the opinion of the Analyst and requested the Court to send the part of the sample kept with the local authority to the Director, Central Food Laboratory for analysis. The certificate of the Director, Central Food Laboratory was that the article of food was adulterated as Bellier test (turbidity temperature - acetic acid method) revealed 37.90 degree C whereas the standard was 39 degree C to 41 degree C. Butyro-refrac-tometer reading at 40 degree C however, was 56.0 degree C, which was within the prescribed limits. In the Trial Court, an objection was taken that the certificate of the Director, Central Food Laboratory should be excluded from consideration as the Director had reported that the specimen impression seal sent to him did not tally with the seal of the container in which the sample of oil was sent to him. The trial Court sustained the objection and held that the report of the Director should not be taken into account. The trial Court, however, relied upon the report of the Public Analyst and convicted the appellant, sentencing him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1, 000/-. The conviction and sentence were confirmed by the District and Sessions Judge on appeal and by the High Court in revision2. It is clear that the conviction cannot stand. Under Section 13(3) of the Prevention of Food Adulteration Act, the report of the Public Analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory. Having been so superseded, the report of the Public Analyst could not, therefore, be relied upon to base a conviction. The certificate of the Director of the Central Food Laboratory having been excluded from consideration because of the tampering of the seals, there was really no evidence before the Court on the basis of which the appellant could be convicted. The Court could not fall back on the report of the Public Analyst as it had been superseded. The only method of challenging the report of the Public Analyst was by having the sample tested by the Director of the Central Food Laboratory. In the present case the appellant was deprived of the opportunity to which he was entitled for no fault of his. It was not, therefore, open to the Court to fall back upon the report of the Public Analyst to convict the appellant. | 1[ds]2. It is clear that the conviction cannot stand. Under Section 13(3) of the Prevention of Food Adulteration Act, the report of the Public Analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory. Having been so superseded, the report of the Public Analyst could not, therefore, be relied upon to base a conviction. The certificate of the Director of the Central Food Laboratory having been excluded from consideration because of the tampering of the seals, there was really no evidence before the Court on the basis of which the appellant could be convicted. The Court could not fall back on the report of the Public Analyst as it had been superseded. The only method of challenging the report of the Public Analyst was by having the sample tested by the Director of the Central Food Laboratory. In the present case the appellant was deprived of the opportunity to which he was entitled for no fault of his. It was not, therefore, open to the Court to fall back upon the report of the Public Analyst to convict the appellant. | 1 | 502 | 209 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
CHINNAPPA REDDY, J.1. Part of the sample of groundnut oil purchased by the Food Inspector from the appellant was found to be adulterated by the Public Analyst. According to the report of the Public Analyst the Bytyro-refractometer reading at 40 degree C was 57.5 instead of the prescribed standard, "54.0 to 57.1." The appellant challenged the opinion of the Analyst and requested the Court to send the part of the sample kept with the local authority to the Director, Central Food Laboratory for analysis. The certificate of the Director, Central Food Laboratory was that the article of food was adulterated as Bellier test (turbidity temperature - acetic acid method) revealed 37.90 degree C whereas the standard was 39 degree C to 41 degree C. Butyro-refrac-tometer reading at 40 degree C however, was 56.0 degree C, which was within the prescribed limits. In the Trial Court, an objection was taken that the certificate of the Director, Central Food Laboratory should be excluded from consideration as the Director had reported that the specimen impression seal sent to him did not tally with the seal of the container in which the sample of oil was sent to him. The trial Court sustained the objection and held that the report of the Director should not be taken into account. The trial Court, however, relied upon the report of the Public Analyst and convicted the appellant, sentencing him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1, 000/-. The conviction and sentence were confirmed by the District and Sessions Judge on appeal and by the High Court in revision2. It is clear that the conviction cannot stand. Under Section 13(3) of the Prevention of Food Adulteration Act, the report of the Public Analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory. Having been so superseded, the report of the Public Analyst could not, therefore, be relied upon to base a conviction. The certificate of the Director of the Central Food Laboratory having been excluded from consideration because of the tampering of the seals, there was really no evidence before the Court on the basis of which the appellant could be convicted. The Court could not fall back on the report of the Public Analyst as it had been superseded. The only method of challenging the report of the Public Analyst was by having the sample tested by the Director of the Central Food Laboratory. In the present case the appellant was deprived of the opportunity to which he was entitled for no fault of his. It was not, therefore, open to the Court to fall back upon the report of the Public Analyst to convict the appellant.
### Response:
1
### Explanation:
2. It is clear that the conviction cannot stand. Under Section 13(3) of the Prevention of Food Adulteration Act, the report of the Public Analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory. Having been so superseded, the report of the Public Analyst could not, therefore, be relied upon to base a conviction. The certificate of the Director of the Central Food Laboratory having been excluded from consideration because of the tampering of the seals, there was really no evidence before the Court on the basis of which the appellant could be convicted. The Court could not fall back on the report of the Public Analyst as it had been superseded. The only method of challenging the report of the Public Analyst was by having the sample tested by the Director of the Central Food Laboratory. In the present case the appellant was deprived of the opportunity to which he was entitled for no fault of his. It was not, therefore, open to the Court to fall back upon the report of the Public Analyst to convict the appellant.
|
Commnr. Of Customs Excise, New Delhi Vs. M/S. Living Media(India) Ltd | 9(1)(c) the cost of technical know-how is included if the same is to be paid, directly or indirectly, as a condition of the sale of imported goods. At this stage, we would like to emphasize the word indirectly in Rule 9(1)(c). As stated above, the buyer/importer makes payment of the price of the imported goods. He also incurs the cost of technical know-how. Therefore, the Department in every case is not only required to look at TAA, it is also required to look at the pricing arrangement/agreement between the buyer and his foreign collaborator. For example, if on examination of the pricing arrangement in juxtaposition with TAA, the Department finds that the importer/buyer has misled the Department by adjusting the price of the imported item in guise of increased royalty/license fees then the adjudicating authority would be right in including the cost of royalty/license fees payment in the price of the imported goods. In such cases the principle of attribution of royalty/license fees to the price of imported goods would apply. This is because every importer/buyer is obliged to pay not only the price for the imported goods but he also incurs the cost of technical know-how which is paid to the foreign supplier. Therefore, such adjustments would certainly attract Rule 9(1))(c)." 30. While laying down the aforesaid proposition this Court has considered the case of Collector of Customs (Prev.), Ahmedabad Vs. Essar Gujarat Ltd. reported in 1996 88 ELT 609 (S.C.) to which also reference was made at the time of hearing of the appeals. 31. There is yet another decision on the aforesaid issue rendered by three Judges Bench of this Court in the case of Associated Cement Companies Ltd. Vs. Commissioner of Customs reported in (2001) 4 SCC 593. Having referred to the case of Essar Gujarat (supra) and after having noted Rules 3, 4 and 9 of the Rules, this Court has stated thus in paragraph 42, 43 and 44 as follows:- "42. .............................. Therefore, the intellectual input in such items greatly enhances the value of the paper and ink in the aforesaid examples. This means that the charge of a duty is on the final product, whether it be the encyclopaedia or the engineering or architectural drawings or any manual.43. Similar would be the position in the case of a programme of any kind loaded on a disc or a floppy. For example in the case of music the value of a popular music cassette is several times more than the value of a blank cassette. However, if a pre-recorded music cassette or a popular film or a musical score is imported into India duty will necessarily have to be charged on the value of the final product............................................................................................................44. It is a misconception to contend that what is being taxed is intellectual input. What is being taxed under the Customs Act read with the Customs Tariff Act and the Customs Valuation Rules is not the input alone but goods whose value has been enhanced by the said inputs. The final product at the time of import is either the magazine or the encyclopaedia or the engineering drawings as the case may be. There is no scope for splitting the engineering drawing or the encyclopaedia into intellectual input on the one hand and the paper on which it is scribed on the other. For example, paintings are also to be taxed. Valuable paintings are worth millions. A painting or a portrait may be specially commissioned or an article may be tailor-made. This aspect is irrelevant since what is taxed is the final product as defined and it will be an absurdity to contend that the value for the purposes of duty ought to be the cost of the canvas and the oil paint even though the composite product, i.e., the painting, is worth millions." 32. The issue that arises for our consideration is therefore appears to be answered by the aforesaid decision in Associated Cements Companies Ltd. (Supra). In the said decision this Court had stated clearly that if a pre-recorded music cassette or a popular film or musical score is imported into India, duty will necessarily have to be charged on the value of the final product. As per Rule 9, in determining the transaction value there has to be added to the price actually paid or payable for the imported goods, royalties and the license fees related to the imported goods that the buyer is required to pay, directly or indirectly, as a condition of sale of goods. Therefore, when pre-recorded music cassette is imported as against the blank cassette, definitely its value goes up in the market which is in addition to its value and therefore duty shall have to be charged on the value of the final product. Therefore, there can be no dispute with regard to the fact that value of the royalty paid is to be included in the transaction value. 33. In all these cases, there is no dispute that the cassettes under question are brought to India as pre-recorded cassettes which carry the music or song of an artist. There is an agreement existing in all the matters that royalty payment is towards money to be paid to artists and producers who had produced such cassettes. Such royalty becomes due and payable as soon as cassettes are distributed and sold and therefore, such royalty becomes payable on the entire records shipped less records returned. It could therefore, be concluded that the payment of royalty was a condition of sale. Counsel appearing for the Respondent relied upon the commentary on the GATT Customs Valuation Code. We failed to see as to how the aforesaid commentary on the GATT Customs Valuation Code could be said to be applicable to the facts of the present case. The specific sections and the rules quoted hereinbefore are themselves very clear and unambiguous. We are required only to give interpretation of the same and apply the same to the facts of the present case. 34. | 0[ds]Royalties and license fees related to the imported goods is the cost which is incurred by the buyer in addition to the price which the buyer has to pay as consideration for the purchase of the imported goods. In other words, in addition to the price for the imported goods the buyer incurs costs on account of royalty and license fee which the buyer pays to the foreign supplier for using information, patent, trade mark and know-how in the manufacture of the licensed product in India. Therefore, there are two concepts which operate simultaneously, namely, price for the imported goods and the royalties/license fees which are also paid to the foreignper Rule 9, in determining the transaction value there has to be added to the price actually paid or payable for the imported goods, royalties and the license fees related to the imported goods that the buyer is required to pay, directly or indirectly, as a condition of sale of goods. Therefore, when pre-recorded music cassette is imported as against the blank cassette, definitely its value goes up in the market which is in addition to its value and therefore duty shall have to be charged on the value of the final product. Therefore, there can be no dispute with regard to the fact that value of the royalty paid is to be included in the transactionis no dispute that the cassettes under question are brought to India as pre-recorded cassettes which carry the music or song of an artist. There is an agreement existing in all the matters that royalty payment is towards money to be paid to artists and producers who had produced such cassettes. Such royalty becomes due and payable as soon as cassettes are distributed and sold and therefore, such royalty becomes payable on the entire records shipped less records returned. It could therefore, be concluded that the payment of royalty was a condition of sale. Counsel appearing for the Respondent relied upon the commentary on the GATT Customs Valuation Code. We failed to see as to how the aforesaid commentary on the GATT Customs Valuation Code could be said to be applicable to the facts of the present case. The specific sections and the rules quoted hereinbefore are themselves very clear and unambiguous. We are required only to give interpretation of the same and apply the same to the facts of the present case. | 0 | 4,323 | 430 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
9(1)(c) the cost of technical know-how is included if the same is to be paid, directly or indirectly, as a condition of the sale of imported goods. At this stage, we would like to emphasize the word indirectly in Rule 9(1)(c). As stated above, the buyer/importer makes payment of the price of the imported goods. He also incurs the cost of technical know-how. Therefore, the Department in every case is not only required to look at TAA, it is also required to look at the pricing arrangement/agreement between the buyer and his foreign collaborator. For example, if on examination of the pricing arrangement in juxtaposition with TAA, the Department finds that the importer/buyer has misled the Department by adjusting the price of the imported item in guise of increased royalty/license fees then the adjudicating authority would be right in including the cost of royalty/license fees payment in the price of the imported goods. In such cases the principle of attribution of royalty/license fees to the price of imported goods would apply. This is because every importer/buyer is obliged to pay not only the price for the imported goods but he also incurs the cost of technical know-how which is paid to the foreign supplier. Therefore, such adjustments would certainly attract Rule 9(1))(c)." 30. While laying down the aforesaid proposition this Court has considered the case of Collector of Customs (Prev.), Ahmedabad Vs. Essar Gujarat Ltd. reported in 1996 88 ELT 609 (S.C.) to which also reference was made at the time of hearing of the appeals. 31. There is yet another decision on the aforesaid issue rendered by three Judges Bench of this Court in the case of Associated Cement Companies Ltd. Vs. Commissioner of Customs reported in (2001) 4 SCC 593. Having referred to the case of Essar Gujarat (supra) and after having noted Rules 3, 4 and 9 of the Rules, this Court has stated thus in paragraph 42, 43 and 44 as follows:- "42. .............................. Therefore, the intellectual input in such items greatly enhances the value of the paper and ink in the aforesaid examples. This means that the charge of a duty is on the final product, whether it be the encyclopaedia or the engineering or architectural drawings or any manual.43. Similar would be the position in the case of a programme of any kind loaded on a disc or a floppy. For example in the case of music the value of a popular music cassette is several times more than the value of a blank cassette. However, if a pre-recorded music cassette or a popular film or a musical score is imported into India duty will necessarily have to be charged on the value of the final product............................................................................................................44. It is a misconception to contend that what is being taxed is intellectual input. What is being taxed under the Customs Act read with the Customs Tariff Act and the Customs Valuation Rules is not the input alone but goods whose value has been enhanced by the said inputs. The final product at the time of import is either the magazine or the encyclopaedia or the engineering drawings as the case may be. There is no scope for splitting the engineering drawing or the encyclopaedia into intellectual input on the one hand and the paper on which it is scribed on the other. For example, paintings are also to be taxed. Valuable paintings are worth millions. A painting or a portrait may be specially commissioned or an article may be tailor-made. This aspect is irrelevant since what is taxed is the final product as defined and it will be an absurdity to contend that the value for the purposes of duty ought to be the cost of the canvas and the oil paint even though the composite product, i.e., the painting, is worth millions." 32. The issue that arises for our consideration is therefore appears to be answered by the aforesaid decision in Associated Cements Companies Ltd. (Supra). In the said decision this Court had stated clearly that if a pre-recorded music cassette or a popular film or musical score is imported into India, duty will necessarily have to be charged on the value of the final product. As per Rule 9, in determining the transaction value there has to be added to the price actually paid or payable for the imported goods, royalties and the license fees related to the imported goods that the buyer is required to pay, directly or indirectly, as a condition of sale of goods. Therefore, when pre-recorded music cassette is imported as against the blank cassette, definitely its value goes up in the market which is in addition to its value and therefore duty shall have to be charged on the value of the final product. Therefore, there can be no dispute with regard to the fact that value of the royalty paid is to be included in the transaction value. 33. In all these cases, there is no dispute that the cassettes under question are brought to India as pre-recorded cassettes which carry the music or song of an artist. There is an agreement existing in all the matters that royalty payment is towards money to be paid to artists and producers who had produced such cassettes. Such royalty becomes due and payable as soon as cassettes are distributed and sold and therefore, such royalty becomes payable on the entire records shipped less records returned. It could therefore, be concluded that the payment of royalty was a condition of sale. Counsel appearing for the Respondent relied upon the commentary on the GATT Customs Valuation Code. We failed to see as to how the aforesaid commentary on the GATT Customs Valuation Code could be said to be applicable to the facts of the present case. The specific sections and the rules quoted hereinbefore are themselves very clear and unambiguous. We are required only to give interpretation of the same and apply the same to the facts of the present case. 34.
### Response:
0
### Explanation:
Royalties and license fees related to the imported goods is the cost which is incurred by the buyer in addition to the price which the buyer has to pay as consideration for the purchase of the imported goods. In other words, in addition to the price for the imported goods the buyer incurs costs on account of royalty and license fee which the buyer pays to the foreign supplier for using information, patent, trade mark and know-how in the manufacture of the licensed product in India. Therefore, there are two concepts which operate simultaneously, namely, price for the imported goods and the royalties/license fees which are also paid to the foreignper Rule 9, in determining the transaction value there has to be added to the price actually paid or payable for the imported goods, royalties and the license fees related to the imported goods that the buyer is required to pay, directly or indirectly, as a condition of sale of goods. Therefore, when pre-recorded music cassette is imported as against the blank cassette, definitely its value goes up in the market which is in addition to its value and therefore duty shall have to be charged on the value of the final product. Therefore, there can be no dispute with regard to the fact that value of the royalty paid is to be included in the transactionis no dispute that the cassettes under question are brought to India as pre-recorded cassettes which carry the music or song of an artist. There is an agreement existing in all the matters that royalty payment is towards money to be paid to artists and producers who had produced such cassettes. Such royalty becomes due and payable as soon as cassettes are distributed and sold and therefore, such royalty becomes payable on the entire records shipped less records returned. It could therefore, be concluded that the payment of royalty was a condition of sale. Counsel appearing for the Respondent relied upon the commentary on the GATT Customs Valuation Code. We failed to see as to how the aforesaid commentary on the GATT Customs Valuation Code could be said to be applicable to the facts of the present case. The specific sections and the rules quoted hereinbefore are themselves very clear and unambiguous. We are required only to give interpretation of the same and apply the same to the facts of the present case.
|
Vineshkumar Mavjibhai Parmar Vs. Dethali Gopalak Vividh Karyakari Sahakari Mandali Ltd. | (in the context of the present case, even the byelaws of the society). The existence or lack of such rights and functions depend upon the scheme and tenor of the SOCIETIES ACT and the subordinate legislation made thereunder. Such rights and functions are put an end to only by the operation of law i.e., the SOCIETIES ACT.23. Apart from that, nothing prevents the legislature from conferring by another law additional rights or functions on a person holding an office created under the SOCIETIES ACT.24. The legislature of Gujarat by Section 11(1) of the MARKETS ACT conferred on the OFFICERS of a class of CREDIT SOCIETIES an additional function of electing members of the market committees. Such function is neither conferred on the OFFICERS of all the societies functioning under the SOCIETIES ACT nor such function includes the right to elect every member of the concerned market committee. Such a function obviously creates a right in the officers of the societies. Such a statutory right could not be taken away in the absence of any express authority of law.25. The Gujarat legislature expressly provided under the SOCIETIES ACT for the curtailment of certain rights of the officers of societies facing liquidation proceedings. It must be remembered that at the same time it also declared that such OFFICERS cease to be the officers of the Society only when a final order of winding up is passed. In a given case if the Registrar after an appropriate enquiry following the interim order of winding decides not to finally wind up the society, the OFFICERS of the society would once again be entitled to exercise all the rights associated with it and perform all the functions attached to the office. Therefore, merely because the officers of CREDIT SOCIETY facing liquidation are disabled from enforcing certain rights attached to the office or perform certain obligations appended to the office, it does not necessarily follow that they are disabled from performing every function entrusted by law to such office.26. We now deal with the submission that the society ceased to be a CREDIT SOCIETY in view of the pendency of the winding up proceedings.27. We are of the opinion that the phrase "co-operative societies dispensing agricultural credit in the market area" in Section 11(1)(i) of the MARKETS ACT is only descriptive of the purpose for which the societies are established. Section 11(1)(i) cannot be construed as imposing an incessant obligation of "dispensing agricultural credit" in order to enable the members of the managing committee of CREDIT SOCIETIES to participate in the election to the market committee. The obligation, if any, to "dispense agricultural credit" arises under the bye-laws of the society subject of course to the availability of funds and various other factors. We are of the opinion that the above quoted words are only descriptive of the class of society the members of whose managing committees are entitled to participate in the election of the market committee. It is obvious from the language of the sub-section that there can exist more than one class of co-operative societies functioning under the Act. The very fact that the legislature took care to expressly exclude members of the managing committees of two classes of societies i.e. "Co-operative Marketing Societies" and "Milk Produce Co-operative Societies", definitely indicates that there can exist more than one class of societies - apart from the common knowledge.28. Section 4 (Section 4. Societies which may be registered.- A society, which has as its object the promotion of the economic interests or general welfare of its members or of the public, in accordance with co-operative principles, or as society established with the object of facilitating the operations of any such society, may be registered under this Act.]) of the SOCIETIES ACT contemplates that societies could be registered for different purposes. They are - "the promotion of the economic interests of its members or general welfare of its members or economic interest of the general welfare of the public".29. Since Section 11(1)(i) of the MARKETS ACT is establishing an electoral college for the election of a certain class (agriculturists) of members of the market committees, the legislature thought it fit that only the members of the managing committees of those co-operative societies which have a nexus to agricultural activity should be members of the electoral college.30. The submission of the appellant that Section 11(1)(i) imposes a legal obligation that the members of the managing committees of only those co-operative societies which are currently dispensing agricultural credit in the market area are entitled to participate in the electoral process of the concerned market committee (in other words, the phrase "co-operative societies dispensing agricultural credit" is indicative of the current activity of the societies but not the purpose for which the society is established), would lead to various difficult questions:(i) What is the period to which the currency of such activity would relate to? Whether the activity should be current when the voters list is prepared or the activity should continue even on the date of voting?(ii) Whether credit societies which do not dispense agricultural credit for a certain period of time because of either paucity of funds or borrowers are debarred from "dispensing agricultural credit" because of some legal prohibition or any other reason operating temporarily cease to be societies whose objective is to provide agricultural credit?31. Credit Societies against which there is an `interim order of winding up are temporarily debarred from dispensing agricultural credit, by virtue of the operation of law. The embargo imposed by such interim order may or may not fructify into a final order of winding up. (We have already discussed this aspect of the matter at para 21 supra). On the face of such possibility of the society resuming its activity of "dispensing agricultural credit" - to debar its managing committee members from discharging their statutory obligation under the MARKETS ACT would be productive of public mischief. Such an interpretation of the statute must be avoided.32. For the above reasons, we | 0[ds]24. The legislature of Gujarat by Section 11(1) of the MARKETS ACT conferred on the OFFICERS of a class of CREDIT SOCIETIES an additional function of electing members of the market committees. Such function is neither conferred on the OFFICERS of all the societies functioning under the SOCIETIES ACT nor such function includes the right to elect every member of the concerned market committee. Such a function obviously creates a right in the officers of the societies. Such a statutory right could not be taken away in the absence of any express authority of law.25. The Gujarat legislature expressly provided under the SOCIETIES ACT for the curtailment of certain rights of the officers of societies facing liquidation proceedings. It must be remembered that at the same time it also declared that such OFFICERS cease to be the officers of the Society only when a final order of winding up is passed. In a given case if the Registrar after an appropriate enquiry following the interim order of winding decides not to finally wind up the society, the OFFICERS of the society would once again be entitled to exercise all the rights associated with it and perform all the functions attached to the office. Therefore, merely because the officers of CREDIT SOCIETY facing liquidation are disabled from enforcing certain rights attached to the office or perform certain obligations appended to the office, it does not necessarily follow that they are disabled from performing every function entrusted by law to such office.We are of the opinion that the phrase "co-operative societies dispensing agricultural credit in the market area" in Section 11(1)(i) of the MARKETS ACT is only descriptive of the purpose for which the societies are established. Section 11(1)(i) cannot be construed as imposing an incessant obligation of "dispensing agricultural credit" in order to enable the members of the managing committee of CREDIT SOCIETIES to participate in the election to the market committee. The obligation, if any, to "dispense agricultural credit" arises under the bye-laws of the society subject of course to the availability of funds and various other factors. We are of the opinion that the above quoted words are only descriptive of the class of society the members of whose managing committees are entitled to participate in the election of the market committee. It is obvious from the language of the sub-section that there can exist more than one class of co-operative societies functioning under the Act. The very fact that the legislature took care to expressly exclude members of the managing committees of two classes of societies i.e. "Co-operative Marketing Societies" and "Milk Produce Co-operative Societies", definitely indicates that there can exist more than one class of societies - apart from the common knowledge.Credit Societies against which there is an `interim order of winding up are temporarily debarred from dispensing agricultural credit, by virtue of the operation of law. The embargo imposed by such interim order may or may not fructify into a final order of winding up. (We have already discussed this aspect of the matter at para 21 supra). On the face of such possibility of the society resuming its activity of "dispensing agricultural credit" - to debar its managing committee members from discharging their statutory obligation under the MARKETS ACT would be productive of public mischief. Such an interpretation of the statute must be avoided. | 0 | 4,336 | 620 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
(in the context of the present case, even the byelaws of the society). The existence or lack of such rights and functions depend upon the scheme and tenor of the SOCIETIES ACT and the subordinate legislation made thereunder. Such rights and functions are put an end to only by the operation of law i.e., the SOCIETIES ACT.23. Apart from that, nothing prevents the legislature from conferring by another law additional rights or functions on a person holding an office created under the SOCIETIES ACT.24. The legislature of Gujarat by Section 11(1) of the MARKETS ACT conferred on the OFFICERS of a class of CREDIT SOCIETIES an additional function of electing members of the market committees. Such function is neither conferred on the OFFICERS of all the societies functioning under the SOCIETIES ACT nor such function includes the right to elect every member of the concerned market committee. Such a function obviously creates a right in the officers of the societies. Such a statutory right could not be taken away in the absence of any express authority of law.25. The Gujarat legislature expressly provided under the SOCIETIES ACT for the curtailment of certain rights of the officers of societies facing liquidation proceedings. It must be remembered that at the same time it also declared that such OFFICERS cease to be the officers of the Society only when a final order of winding up is passed. In a given case if the Registrar after an appropriate enquiry following the interim order of winding decides not to finally wind up the society, the OFFICERS of the society would once again be entitled to exercise all the rights associated with it and perform all the functions attached to the office. Therefore, merely because the officers of CREDIT SOCIETY facing liquidation are disabled from enforcing certain rights attached to the office or perform certain obligations appended to the office, it does not necessarily follow that they are disabled from performing every function entrusted by law to such office.26. We now deal with the submission that the society ceased to be a CREDIT SOCIETY in view of the pendency of the winding up proceedings.27. We are of the opinion that the phrase "co-operative societies dispensing agricultural credit in the market area" in Section 11(1)(i) of the MARKETS ACT is only descriptive of the purpose for which the societies are established. Section 11(1)(i) cannot be construed as imposing an incessant obligation of "dispensing agricultural credit" in order to enable the members of the managing committee of CREDIT SOCIETIES to participate in the election to the market committee. The obligation, if any, to "dispense agricultural credit" arises under the bye-laws of the society subject of course to the availability of funds and various other factors. We are of the opinion that the above quoted words are only descriptive of the class of society the members of whose managing committees are entitled to participate in the election of the market committee. It is obvious from the language of the sub-section that there can exist more than one class of co-operative societies functioning under the Act. The very fact that the legislature took care to expressly exclude members of the managing committees of two classes of societies i.e. "Co-operative Marketing Societies" and "Milk Produce Co-operative Societies", definitely indicates that there can exist more than one class of societies - apart from the common knowledge.28. Section 4 (Section 4. Societies which may be registered.- A society, which has as its object the promotion of the economic interests or general welfare of its members or of the public, in accordance with co-operative principles, or as society established with the object of facilitating the operations of any such society, may be registered under this Act.]) of the SOCIETIES ACT contemplates that societies could be registered for different purposes. They are - "the promotion of the economic interests of its members or general welfare of its members or economic interest of the general welfare of the public".29. Since Section 11(1)(i) of the MARKETS ACT is establishing an electoral college for the election of a certain class (agriculturists) of members of the market committees, the legislature thought it fit that only the members of the managing committees of those co-operative societies which have a nexus to agricultural activity should be members of the electoral college.30. The submission of the appellant that Section 11(1)(i) imposes a legal obligation that the members of the managing committees of only those co-operative societies which are currently dispensing agricultural credit in the market area are entitled to participate in the electoral process of the concerned market committee (in other words, the phrase "co-operative societies dispensing agricultural credit" is indicative of the current activity of the societies but not the purpose for which the society is established), would lead to various difficult questions:(i) What is the period to which the currency of such activity would relate to? Whether the activity should be current when the voters list is prepared or the activity should continue even on the date of voting?(ii) Whether credit societies which do not dispense agricultural credit for a certain period of time because of either paucity of funds or borrowers are debarred from "dispensing agricultural credit" because of some legal prohibition or any other reason operating temporarily cease to be societies whose objective is to provide agricultural credit?31. Credit Societies against which there is an `interim order of winding up are temporarily debarred from dispensing agricultural credit, by virtue of the operation of law. The embargo imposed by such interim order may or may not fructify into a final order of winding up. (We have already discussed this aspect of the matter at para 21 supra). On the face of such possibility of the society resuming its activity of "dispensing agricultural credit" - to debar its managing committee members from discharging their statutory obligation under the MARKETS ACT would be productive of public mischief. Such an interpretation of the statute must be avoided.32. For the above reasons, we
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24. The legislature of Gujarat by Section 11(1) of the MARKETS ACT conferred on the OFFICERS of a class of CREDIT SOCIETIES an additional function of electing members of the market committees. Such function is neither conferred on the OFFICERS of all the societies functioning under the SOCIETIES ACT nor such function includes the right to elect every member of the concerned market committee. Such a function obviously creates a right in the officers of the societies. Such a statutory right could not be taken away in the absence of any express authority of law.25. The Gujarat legislature expressly provided under the SOCIETIES ACT for the curtailment of certain rights of the officers of societies facing liquidation proceedings. It must be remembered that at the same time it also declared that such OFFICERS cease to be the officers of the Society only when a final order of winding up is passed. In a given case if the Registrar after an appropriate enquiry following the interim order of winding decides not to finally wind up the society, the OFFICERS of the society would once again be entitled to exercise all the rights associated with it and perform all the functions attached to the office. Therefore, merely because the officers of CREDIT SOCIETY facing liquidation are disabled from enforcing certain rights attached to the office or perform certain obligations appended to the office, it does not necessarily follow that they are disabled from performing every function entrusted by law to such office.We are of the opinion that the phrase "co-operative societies dispensing agricultural credit in the market area" in Section 11(1)(i) of the MARKETS ACT is only descriptive of the purpose for which the societies are established. Section 11(1)(i) cannot be construed as imposing an incessant obligation of "dispensing agricultural credit" in order to enable the members of the managing committee of CREDIT SOCIETIES to participate in the election to the market committee. The obligation, if any, to "dispense agricultural credit" arises under the bye-laws of the society subject of course to the availability of funds and various other factors. We are of the opinion that the above quoted words are only descriptive of the class of society the members of whose managing committees are entitled to participate in the election of the market committee. It is obvious from the language of the sub-section that there can exist more than one class of co-operative societies functioning under the Act. The very fact that the legislature took care to expressly exclude members of the managing committees of two classes of societies i.e. "Co-operative Marketing Societies" and "Milk Produce Co-operative Societies", definitely indicates that there can exist more than one class of societies - apart from the common knowledge.Credit Societies against which there is an `interim order of winding up are temporarily debarred from dispensing agricultural credit, by virtue of the operation of law. The embargo imposed by such interim order may or may not fructify into a final order of winding up. (We have already discussed this aspect of the matter at para 21 supra). On the face of such possibility of the society resuming its activity of "dispensing agricultural credit" - to debar its managing committee members from discharging their statutory obligation under the MARKETS ACT would be productive of public mischief. Such an interpretation of the statute must be avoided.
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Commissioner of Income-Tax, West Bengal Vs. Isthmian Steamship Lines | 1940-41. The Appellate Assistant Commissioner of Income-tax answered the question in the negative and gave two reasons for not giving effect to the contention of the assessee. Firstly, he pointed out that in the course of the assessment for the year 1940-41, the question whether the unabsorbed depreciation remaining at the end of the year 1938-39 could or could not be carried forward and allowed in subsequent years had come up for consideration before the Income-tax Officer but he had decided that it could not be so carried forward. Nevertheless, the company did not appeal against the order and hence the matter could not be reopened in subsequent assessments. Secondly, by reason of the amendment of the section, the respondent-company was not entitled to carry forward the unabsorbed depreciation at the end of 1938-39The income-tax Appellate Tribunal did not accept the first ground but based its decision only on the second ground. In this appeal, we are not concerned with the first ground, because, as has been pointed out by the learned Chief Justice in the order granting leave to appeal, the Income-tax authorities appear to have accepted the view of the Tribunal on the first point since they did not ask the Tribunal to state a case giving rise to the contention which had found favour with the Appellate Assistant Commissioner but had been rejected by the Tribunal5. The only question with which we are thus concerned is whether or not the company was entitled to carry forward the unabsorbed depreciation at the end of 1938-39. In our opinion, this question has been rightly answered by the High Court in favour of the assessee6. It will be observed that we are here concerned with to datum lines : (1) the 1st of April, 1940, when the Act came into force and (2) the 1st of April, 1939, which is the date mentioned in the amended proviso. The first question to be answered is whether these dates are to apply to the accounting year or the year of assessment. They must be held to apply to the assessment year, because in income-tax matters the law to be applied is the law in force in the assessment year unless otherwise stated or implied. The first datum line therefore affected only the assessment year of 1940-41, because the amendment did not come into force till the 1st of April, 1940. That means that the old law applied to every assessment year up to and including the assessment year 1939-407. In the assessment year 1938-39, the assessee showed a certain unabsorbed depreciation in its accounts for the calendar year 1937, that being the assessees accounting year for the assessment year 1938-39. Under the unamended section, he was permitted to carry that amount forward into the accounting year 1938, add it to the depreciation for 1938 and treat the total amount as the " allowance for the assessment year 1939-40The Income-tax Officer refused to allow that amount, but, for the reasons already stated, we have to disregard that fact and therefore, for the purpose of the present reference, must treat the unabsorbed depreciation which was carried forward from the assessment year 193839 into the accounts of the assessment year 1939-40 as the unabsorbed depreciation in the assessment year 1939-40 and treat it as unabsorbed for the reason that the profits in that year were not sufficient to absorb this sum, that being the position which would have resulted had the Income-tax Officer not disallowed the sum. In other words, in answering the reference, we have to accept the position which the accounts would have revealed had the Income-tax Officer not wrongly refused to allow the unabsorbed depreciation of 1938-39 to be carried forward to 1939-40. It follows from this, as the learned Chief Justice has pointed in the judgment under appeal, that according to the mandatory provisions of the old section, the allowance for 1939-40 is not only the percentage allowed for that year but also the unabsorbed depreciation for 1938-398. Now we come to the assessment year 1940-41. The amended ,section applied here and the question is whether under the new law this figure could be carried forward into 1940-41. The first question which arises is whether the assessment year 1939-40 is an assessment year which ended prior to the 1st of April, 1939. It is evident that it is not, because it ended on the 31st of March, 1940. Therefore, it is not one of the excluded years. As it is not, and as, on the facts set out above, what must be regarded as the unabsorbed depreciation for the year 1939-40 could not be absorbed for the reason given in the amended section, it follows that it can be carried forward into the accounts of the assessment year 1940-41 and from there on to the accounts of the succeeding assessment years, if it is not absorbed meanwhile for the reasons given in the provisoAs has been pointed out already, the section provides that in order to enable the unabsorbed depreciation to be carried forward to the succeeding year, it must be shown that full effect was not given in the previous year, owing to there being no profits or gains chargeable for the year, or, owing to the profits or gains chargeable being less ,than the allowance. It was argued on behalf of the appellant that in the present case full effect could not be given to the unabsorbed depreciation not for the reasons stated in the section but on account of the failure of the assessee to take the matter in appeal against the assessment for 1940-41. In our opinion, this view is based on a misreading of the section. The words used in the section are :--" where full effect cannot be given ", and not "where full effect has not been given." It is not denied that the profits or gains were less than the depreciation allowance, and that being so the requirements of the section were satisfied | 1[ds]In our opinion, this question has been rightly answered by the High Court in favour of the assessee6. It will be observed that we are here concerned with to datum lines : (1) the 1st of April, 1940, when the Act came into force and (2) the 1st of April, 1939, which is the date mentioned in the amended proviso. The first question to be answered is whether these dates are to apply to the accounting year or the year of assessment. They must be held to apply to the assessment year, because inmatters the law to be applied is the law in force in the assessment year unless otherwise stated or implied. The first datum line therefore affected only the assessment year ofbecause the amendment did not come into force till the 1st of April, 1940. That means that the old law applied to every assessment year up to and including the assessment yearIn the assessment yearthe assessee showed a certain unabsorbed depreciation in its accounts for the calendar year 1937, that being the assessees accounting year for the assessment yearUnder the unamended section, he was permitted to carry that amount forward into the accounting year 1938, add it to the depreciation for 1938 and treat the total amount as the " allowance for the assessment yearx Officer refused to allow that amount, but, for the reasons already stated, we have to disregard that fact and therefore, for the purpose of the present reference, must treat the unabsorbed depreciation which was carried forward from the assessment year 193839 into the accounts of the assessment yearas the unabsorbed depreciation in the assessment yearand treat it as unabsorbed for the reason that the profits in that year were not sufficient to absorb this sum, that being the position which would have resulted had theOfficer not disallowed the sum. In other words, in answering the reference, we have to accept the position which the accounts would have revealed had theOfficer not wrongly refused to allow the unabsorbed depreciation ofto be carried forward toIt follows from this, as the learned Chief Justice has pointed in the judgment under appeal, that according to the mandatory provisions of the old section, the allowance foris not only the percentage allowed for that year but also the unabsorbed depreciation foris evident that it is not, because it ended on the 31st of March, 1940. Therefore, it is not one of the excluded years. As it is not, and as, on the facts set out above, what must be regarded as the unabsorbed depreciation for the yearcould not be absorbed for the reason given in the amended section, it follows that it can be carried forward into the accounts of the assessment yearand from there on to the accounts of the succeeding assessment years, if it is not absorbed meanwhile for the reasons given in the provisoAs has been pointed out already, the section provides that in order to enable the unabsorbed depreciationto be carried forward tothe succeeding year, it must be shown that full effect was not given in the previous year, owing to there being no profits or gains chargeable for the year, or, owing to the profits or gains chargeable being less ,than theour opinion, this view is based on a misreading of the section. The words used in the section arewhere full effect cannot be given ", and not "where full effect has not been given." It is not denied that the profits or gains were less than the depreciation allowance, and that being so the requirements of the section were satisfied | 1 | 2,174 | 657 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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1940-41. The Appellate Assistant Commissioner of Income-tax answered the question in the negative and gave two reasons for not giving effect to the contention of the assessee. Firstly, he pointed out that in the course of the assessment for the year 1940-41, the question whether the unabsorbed depreciation remaining at the end of the year 1938-39 could or could not be carried forward and allowed in subsequent years had come up for consideration before the Income-tax Officer but he had decided that it could not be so carried forward. Nevertheless, the company did not appeal against the order and hence the matter could not be reopened in subsequent assessments. Secondly, by reason of the amendment of the section, the respondent-company was not entitled to carry forward the unabsorbed depreciation at the end of 1938-39The income-tax Appellate Tribunal did not accept the first ground but based its decision only on the second ground. In this appeal, we are not concerned with the first ground, because, as has been pointed out by the learned Chief Justice in the order granting leave to appeal, the Income-tax authorities appear to have accepted the view of the Tribunal on the first point since they did not ask the Tribunal to state a case giving rise to the contention which had found favour with the Appellate Assistant Commissioner but had been rejected by the Tribunal5. The only question with which we are thus concerned is whether or not the company was entitled to carry forward the unabsorbed depreciation at the end of 1938-39. In our opinion, this question has been rightly answered by the High Court in favour of the assessee6. It will be observed that we are here concerned with to datum lines : (1) the 1st of April, 1940, when the Act came into force and (2) the 1st of April, 1939, which is the date mentioned in the amended proviso. The first question to be answered is whether these dates are to apply to the accounting year or the year of assessment. They must be held to apply to the assessment year, because in income-tax matters the law to be applied is the law in force in the assessment year unless otherwise stated or implied. The first datum line therefore affected only the assessment year of 1940-41, because the amendment did not come into force till the 1st of April, 1940. That means that the old law applied to every assessment year up to and including the assessment year 1939-407. In the assessment year 1938-39, the assessee showed a certain unabsorbed depreciation in its accounts for the calendar year 1937, that being the assessees accounting year for the assessment year 1938-39. Under the unamended section, he was permitted to carry that amount forward into the accounting year 1938, add it to the depreciation for 1938 and treat the total amount as the " allowance for the assessment year 1939-40The Income-tax Officer refused to allow that amount, but, for the reasons already stated, we have to disregard that fact and therefore, for the purpose of the present reference, must treat the unabsorbed depreciation which was carried forward from the assessment year 193839 into the accounts of the assessment year 1939-40 as the unabsorbed depreciation in the assessment year 1939-40 and treat it as unabsorbed for the reason that the profits in that year were not sufficient to absorb this sum, that being the position which would have resulted had the Income-tax Officer not disallowed the sum. In other words, in answering the reference, we have to accept the position which the accounts would have revealed had the Income-tax Officer not wrongly refused to allow the unabsorbed depreciation of 1938-39 to be carried forward to 1939-40. It follows from this, as the learned Chief Justice has pointed in the judgment under appeal, that according to the mandatory provisions of the old section, the allowance for 1939-40 is not only the percentage allowed for that year but also the unabsorbed depreciation for 1938-398. Now we come to the assessment year 1940-41. The amended ,section applied here and the question is whether under the new law this figure could be carried forward into 1940-41. The first question which arises is whether the assessment year 1939-40 is an assessment year which ended prior to the 1st of April, 1939. It is evident that it is not, because it ended on the 31st of March, 1940. Therefore, it is not one of the excluded years. As it is not, and as, on the facts set out above, what must be regarded as the unabsorbed depreciation for the year 1939-40 could not be absorbed for the reason given in the amended section, it follows that it can be carried forward into the accounts of the assessment year 1940-41 and from there on to the accounts of the succeeding assessment years, if it is not absorbed meanwhile for the reasons given in the provisoAs has been pointed out already, the section provides that in order to enable the unabsorbed depreciation to be carried forward to the succeeding year, it must be shown that full effect was not given in the previous year, owing to there being no profits or gains chargeable for the year, or, owing to the profits or gains chargeable being less ,than the allowance. It was argued on behalf of the appellant that in the present case full effect could not be given to the unabsorbed depreciation not for the reasons stated in the section but on account of the failure of the assessee to take the matter in appeal against the assessment for 1940-41. In our opinion, this view is based on a misreading of the section. The words used in the section are :--" where full effect cannot be given ", and not "where full effect has not been given." It is not denied that the profits or gains were less than the depreciation allowance, and that being so the requirements of the section were satisfied
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### Explanation:
In our opinion, this question has been rightly answered by the High Court in favour of the assessee6. It will be observed that we are here concerned with to datum lines : (1) the 1st of April, 1940, when the Act came into force and (2) the 1st of April, 1939, which is the date mentioned in the amended proviso. The first question to be answered is whether these dates are to apply to the accounting year or the year of assessment. They must be held to apply to the assessment year, because inmatters the law to be applied is the law in force in the assessment year unless otherwise stated or implied. The first datum line therefore affected only the assessment year ofbecause the amendment did not come into force till the 1st of April, 1940. That means that the old law applied to every assessment year up to and including the assessment yearIn the assessment yearthe assessee showed a certain unabsorbed depreciation in its accounts for the calendar year 1937, that being the assessees accounting year for the assessment yearUnder the unamended section, he was permitted to carry that amount forward into the accounting year 1938, add it to the depreciation for 1938 and treat the total amount as the " allowance for the assessment yearx Officer refused to allow that amount, but, for the reasons already stated, we have to disregard that fact and therefore, for the purpose of the present reference, must treat the unabsorbed depreciation which was carried forward from the assessment year 193839 into the accounts of the assessment yearas the unabsorbed depreciation in the assessment yearand treat it as unabsorbed for the reason that the profits in that year were not sufficient to absorb this sum, that being the position which would have resulted had theOfficer not disallowed the sum. In other words, in answering the reference, we have to accept the position which the accounts would have revealed had theOfficer not wrongly refused to allow the unabsorbed depreciation ofto be carried forward toIt follows from this, as the learned Chief Justice has pointed in the judgment under appeal, that according to the mandatory provisions of the old section, the allowance foris not only the percentage allowed for that year but also the unabsorbed depreciation foris evident that it is not, because it ended on the 31st of March, 1940. Therefore, it is not one of the excluded years. As it is not, and as, on the facts set out above, what must be regarded as the unabsorbed depreciation for the yearcould not be absorbed for the reason given in the amended section, it follows that it can be carried forward into the accounts of the assessment yearand from there on to the accounts of the succeeding assessment years, if it is not absorbed meanwhile for the reasons given in the provisoAs has been pointed out already, the section provides that in order to enable the unabsorbed depreciationto be carried forward tothe succeeding year, it must be shown that full effect was not given in the previous year, owing to there being no profits or gains chargeable for the year, or, owing to the profits or gains chargeable being less ,than theour opinion, this view is based on a misreading of the section. The words used in the section arewhere full effect cannot be given ", and not "where full effect has not been given." It is not denied that the profits or gains were less than the depreciation allowance, and that being so the requirements of the section were satisfied
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Union Bank of India Vs. Khader International Construction | party ordered by the decree to pay the same. It is further provided that when the suit is dismissed, then also the State would take steps to recover the court fee payable by the plaintiff and this Court fee shall be a first charge on the subject matter of the suit. So there is only a provision for the deferred payment of the Court fees and this benevolent provision is intended to help the poor litigants who are unable to pay the requisite Court fee to file a suit because of their poverty. Explanation 1 to Rule 1 of Order XXXIII states that an indigent person is one who is not possessed of sufficient amount (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit. It is further provided that where no such fee is prescribed, if such person is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject matter of the suit he would be an indigent person. Prior to the passing of the CPC (Amendment) Act 104 of 1976, the term "indigent person" had a slightly different Explanation. In that Explanation, it was stated that a person is a upper when he is not possessed of sufficient means to enable him to pay the fees prescribed by law for the plaint in such suit, or where no such fee is prescribed, if he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject matter of the suit. The expression `other than his necessary wearing apparel was deleted by CPC amendment Act No. 104 of 1976. These words had assumed some importance in attributing the meaning `natural person to the word `person mentioned in Order XXXIII. A company, idol or other juristic person cannot have the wearing apparel. However, as these words are now deleted by the Amendment Act No. 104 of 1976, the present Explanation I need alone be taken to construe the meaning of the term `person in Order XXXIII. In the CPC, though the term `person occurs in several other parts, it is not defined in the Code. The term "decree holder" defined in Section 2(3) is as follows : "Decree-holder means any person in whose favour a decree has been passed or an order capable of execution has been made." Under Section 2(10), "judgment-debtor" is defined to mean any person against whom a decree has been passed or an order capable of execution has been made. Order 1 of the CPC deals with the parties to suit. Rule 1 of Order 1 says who are all the persons that may be joined as plaintiffs in one suit. Rule 3 states who are all the persons who may be joined as defendants. 18. Any juristic person such as a company or idol can maintain a suit. These persons can be either decree-holders or judgment-debtors and in all these instances, the term `person is used to describe such company or idol or other juristic person as provided in the General Clauses Act. The definition of the term `person is given in the General Clauses Act according to which such term shall include any company or association or body of individuals whether incorporated or not. The said definition provides that the word `person would include both natural and artificial persons. 19. Under Order XXXIII, the petitioner who files an application has to present the application in person. Rule 3 of states that the person who is presenting the application shall be in a position to answer all material questions relating to the application and he may also be examined by the Court. 20. The counsel for the appellant argued that in view of this provision, the word "person" has to be understood to mean a natural person, otherwise the company would not be in a position to present the application. We do not think that such a view in correct. A company being a juristic person, it would be represented by a person competent to represent it. It is enough that a person competent to represent a company need present the application under Rule 3 of Order XXXIII. Minors, lunatics or persons under any disability are also entitled to file suit either represented through a guardian or next friend. They can also maintain an application under Order XXXIII. Under such circumstances, the real petitioner is not the person to present the application, but the guardian or the next friend who is competent to represent such petitioner to present the application under Rule 3, Order XXXIII. Therefore, to give meaning to the word `person, the procedure prescribed under Rule 3 has no significance. Lord Selborne in Pharmaceutical Society v. London and Provincial Supply Association, 5 Appeal Cases 857, observed : "There can be no question that the word `person may and ...prima facie does, in a public statute include a person in law; that is, a corporation, as well as a natural person. But although that is a sense which the word will bear in law, and which as I said, perhaps, ought to be attributed to it in the construction of statute unless there should be any reason for a contrary construction, it is never to be forgetten, that in its popular sense and ordinary use it does not extend so far." 21. Therefore, the word `person has to be given its meaning in the context in which it is used. It refers to a person who is capable of filing a suit and this being a benevolent provision, it is to be given an extended meaning. Therefore, we are of the view that a public limited company, which is otherwise entitled to maintain a suit as a legal person, can very well maintain an application under Order XXXIII, Rule 1 CPC. | 0[ds]21. Therefore, the word `person has to be given its meaning in the context in which it is used. It refers to a person who is capable of filing a suit and this being a benevolent provision, it is to be given an extended meaning. Therefore, we are of the view that a public limited company, which is otherwise entitled to maintain a suit as a legal person, can very well maintain an application under Order XXXIII, Rule 1 CPC. | 0 | 3,594 | 95 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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party ordered by the decree to pay the same. It is further provided that when the suit is dismissed, then also the State would take steps to recover the court fee payable by the plaintiff and this Court fee shall be a first charge on the subject matter of the suit. So there is only a provision for the deferred payment of the Court fees and this benevolent provision is intended to help the poor litigants who are unable to pay the requisite Court fee to file a suit because of their poverty. Explanation 1 to Rule 1 of Order XXXIII states that an indigent person is one who is not possessed of sufficient amount (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit. It is further provided that where no such fee is prescribed, if such person is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject matter of the suit he would be an indigent person. Prior to the passing of the CPC (Amendment) Act 104 of 1976, the term "indigent person" had a slightly different Explanation. In that Explanation, it was stated that a person is a upper when he is not possessed of sufficient means to enable him to pay the fees prescribed by law for the plaint in such suit, or where no such fee is prescribed, if he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject matter of the suit. The expression `other than his necessary wearing apparel was deleted by CPC amendment Act No. 104 of 1976. These words had assumed some importance in attributing the meaning `natural person to the word `person mentioned in Order XXXIII. A company, idol or other juristic person cannot have the wearing apparel. However, as these words are now deleted by the Amendment Act No. 104 of 1976, the present Explanation I need alone be taken to construe the meaning of the term `person in Order XXXIII. In the CPC, though the term `person occurs in several other parts, it is not defined in the Code. The term "decree holder" defined in Section 2(3) is as follows : "Decree-holder means any person in whose favour a decree has been passed or an order capable of execution has been made." Under Section 2(10), "judgment-debtor" is defined to mean any person against whom a decree has been passed or an order capable of execution has been made. Order 1 of the CPC deals with the parties to suit. Rule 1 of Order 1 says who are all the persons that may be joined as plaintiffs in one suit. Rule 3 states who are all the persons who may be joined as defendants. 18. Any juristic person such as a company or idol can maintain a suit. These persons can be either decree-holders or judgment-debtors and in all these instances, the term `person is used to describe such company or idol or other juristic person as provided in the General Clauses Act. The definition of the term `person is given in the General Clauses Act according to which such term shall include any company or association or body of individuals whether incorporated or not. The said definition provides that the word `person would include both natural and artificial persons. 19. Under Order XXXIII, the petitioner who files an application has to present the application in person. Rule 3 of states that the person who is presenting the application shall be in a position to answer all material questions relating to the application and he may also be examined by the Court. 20. The counsel for the appellant argued that in view of this provision, the word "person" has to be understood to mean a natural person, otherwise the company would not be in a position to present the application. We do not think that such a view in correct. A company being a juristic person, it would be represented by a person competent to represent it. It is enough that a person competent to represent a company need present the application under Rule 3 of Order XXXIII. Minors, lunatics or persons under any disability are also entitled to file suit either represented through a guardian or next friend. They can also maintain an application under Order XXXIII. Under such circumstances, the real petitioner is not the person to present the application, but the guardian or the next friend who is competent to represent such petitioner to present the application under Rule 3, Order XXXIII. Therefore, to give meaning to the word `person, the procedure prescribed under Rule 3 has no significance. Lord Selborne in Pharmaceutical Society v. London and Provincial Supply Association, 5 Appeal Cases 857, observed : "There can be no question that the word `person may and ...prima facie does, in a public statute include a person in law; that is, a corporation, as well as a natural person. But although that is a sense which the word will bear in law, and which as I said, perhaps, ought to be attributed to it in the construction of statute unless there should be any reason for a contrary construction, it is never to be forgetten, that in its popular sense and ordinary use it does not extend so far." 21. Therefore, the word `person has to be given its meaning in the context in which it is used. It refers to a person who is capable of filing a suit and this being a benevolent provision, it is to be given an extended meaning. Therefore, we are of the view that a public limited company, which is otherwise entitled to maintain a suit as a legal person, can very well maintain an application under Order XXXIII, Rule 1 CPC.
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### Explanation:
21. Therefore, the word `person has to be given its meaning in the context in which it is used. It refers to a person who is capable of filing a suit and this being a benevolent provision, it is to be given an extended meaning. Therefore, we are of the view that a public limited company, which is otherwise entitled to maintain a suit as a legal person, can very well maintain an application under Order XXXIII, Rule 1 CPC.
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ASSOCIATION OF MEDICAL SUPER SPECIALITY ASPIRANTS AND RESIDENTS Vs. UNION OF INDIA | and peace. The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the right of every person to the enjoyment of the highest attainable standard of physical and mental health. ICESCR mandates the States Parties to achieve full realization of the aforementioned right through the creation of conditions which would assure to all, medical service and medical attention in the event of sickness, inter alia. 33. The above discussion leads us to the conclusion that right to life guaranteed by Article 21 means right to life with human dignity. Communitarian dignity has been recognised by this Court. While balancing communitarian dignity vis-à-vis the dignity of private individuals, the scales must tilt in favour of communitarian dignity. The laudable objective with which the State Governments have introduced compulsory service bonds is to protect the fundamental right of the deprived sections of the society guaranteed to them under Article 21 of the Constitution of India. The contention of the Appellants that their rights guaranteed under Article 21 of the Constitution of India have been violated is rejected. Article 23 34. Article 23 reads as follows:23. ?(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.?35. The submission of Mr. Huzefa Ahmadi, learned Senior Counsel for the Appellants is that the conditions of the bond per se amount to ‘forced labour? and thus are violative of Article 23 (1) of the Constitution. Mr. Dwivedi expostulated the said submission by referring to Article 23 (2) which confers power on the State to impose compulsory service for public purpose. Reliance was placed upon the Constituent Assembly Debates by Mr. Dwivedi explaining the scope of compulsory employment for public purpose under Article 23 (2) of the Constitution of India. The Appellants who are required to work for a short period on a decent stipend cannot complain that they are made to perform ‘forced labour?, especially after the Appellants have taken an informed decision to avail the benefits of admission in government medical colleges and received subsidized education. By no means, the service rendered by the Appellants in Government hospitals would fall under the expression of ‘forced labour?. 36. The 13 th Amendment to the U.S. Constitution prohibits slavery and involuntary servitude. The Supreme Court of the United States held that compulsory employment for public purpose does not amount to ‘involuntary servitude? in Robertson v. Baldwin (165 U.S. 275 (1897) [US Supreme Court]) and Butler v. Perry ((1916), 240 U.S. 328, 329). Article 23 (2) of the Constitution enables the State Governments to require the Appellants to do compulsory service in the Government hospitals which is undoubtedly for the benefit of the public. III. Contract of Personal Service 37. Section 14 of the Specific Relief Act, 1963 prohibits the enforcement of contracts of personal service. The submission of Mr. Ahmadi that the contract of personal service, in the form of a compulsory bond, is not enforceable was dealt with by Mr. Dwivedi, who argued that the State Governments do not intend to enforce the contract in a court of law. It is trite law that Courts do not ordinarily enforce performance of contracts of personal character, such as a contract of employment (Nandganj Sihori Sugar Co. Ltd. Rae Bareli & Anr. v. Badri Nath Dixit & Ors. (1991) 3 SCC 54 ).Reference can be made to the judgment of Jessel, M.R., in Rigby v. Connol (1880) 14 Ch D 482, 487 wherein he held that:?The courts have never dreamt of enforcing agreements strictly personal in their nature, whether they are agreements of hiring and service, being the common relation of master and servant ….?38. Specific performance of contract for personal service is not permissible under the Specific Relief Act, therefore, there cannot be a decree for specific performance of a contract of personal nature. None of the State Governments have made an attempt to enforce the contracts entered into by them with the Appellants through the service bonds. We are not in agreement with the submission of Mr. Ahmadi that the compulsory bonds fall foul of the Specific Relief Act. IV. Restraint on Profession 39. The argument advanced on behalf of the Appellants that compulsory bonds placed a restraint on their profession and thus, would be contrary to Section 27 of the Indian Contract Act, 1872. The High Court of Calcutta repelled this submission by holding that the compulsory bond does not amount to any restraint on the professional activity of the Appellants. The High Court observed that the Appellants are offered the job of Medical Officer in the State of West Bengal and that the covenant in the compulsory bond operates only during the period of such employment. Relying upon the dictum of Lord Morris in Esso Petroleum v. Harper?s Garage (Stourport) Ltd., 1967 1 All ER 699 that if A made a contract under which he willingly agreed to serve B on reasonable terms for a few years and to give his whole working time to B, it would be surprising indeed, if it were sought to describe the contract as being in restraint of trade; in fact, such a contract would very likely be for the advancement of trade?, the High Court concluded that a contract entered into by Appellants to serve the government for a few years under reasonable terms cannot be described as one in restraint of trade. We are in agreement with the findings recorded by the High Court of Calcutta. Therefore, we are of the considered opinion that the conditions of compulsory bonds for admission to post-graduate and super-Speciality courses in government medical colleges are not in violation of Section 27 of the Indian Contract Act, 1872. | 0[ds]n of the StateEntry 66 of List I of the 7 th Schedule to the Constitution refers to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Entry 25 of List III of the 7 th Schedule deals with education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I. Legislations can be made by the State Legislature relating to medical education subject to the legislation made by the Parliament. The Medical Council of India Act governs the field of medical education in this country. Admittedly, there is no provision in the Medical Council of India Act touching upon the subject matter of compulsory bonds. Therefore, the States are free to legislate on the subject matter of medical bonds. Executive authority of the State Government is co-extensive with that of the legislative power of the State Legislature. Even in the absence of any legislation, the State Government has the competence to issue executive orders under Article 162 of the Constitution on matters over which the State legislature has the power to legislate. The Notifications issued by the State Governments imposing a condition of execution of compulsory bonds at the time of admission to post- graduate courses and super Speciality courses cannot be said to be vitiated due to lack of authority or competence. The field of bonds requiring compulsory employment is not covered by any Central Legislation. Therefore, the submissions made on behalf of the Appellants that the States lacked competence to issue the notifications as the field is occupied are rejected.Violation of Fundamentale all, the State Governments have taken into account the need to provide health care to the people and the scarcity of super specialists in their States. Consequently, a policy decision taken by the State Governments to utilize the services of doctors who were beneficiaries of Government assistance to complete their education cannot be termed arbitrary., we are in agreement with the learned counsel for the doctors that the period of compulsory service and the exit should be, the Notifications that were issued by the State Governments fall foul of Article 19(1)(g). The compulsory bond executed by the Appellants is at the time of their admissions into post-graduate and super Speciality courses. Conditions imposed for admission to a medical college will not directly violate the right of an individual to carry on his profession. The right to carry on the profession would start on the completion of the course. At the outset, there is no doubt that no right inheres in an individual to receive higher education. Violation of a right guaranteed under Article 19(1)(g) does not arise in a case pertaining to admission to a college. There is no doubt, that the condition that is imposed has a connection with the professional activity of a doctor on completion of the course. However, the Appellants have, without any protest, accepted the admissions and executed the compulsory bonds. Execution of bonds is part of a composite package. We are in agreement with the judgment of the Calcutta High Court that the Appellants have not been able to succeed in their attempt of assailing the Notifications for being violative of Article 19(1)(g) of the Constitution. We uphold the said finding of the Division. We accept the submission of Mr.Rakesh Dwivedi, learned Senior Counsel for the State of West Bengal that the positiveof the Stateto uphold the dignity of a larger section of the society is to protect the rights conferred on them by Article 21 of the Constitution.The immediate need of the deprived sections of the society to have proper health care was the reason behind the policy decision of the Government. The objective of the policy is to ensure that specialist health care is extended to the have-notsstated earlier, the right that is claimed by the Appellants is to make an individual choice to carry on their profession which might be hindered by the decision of the Government. On the other hand, the basic idea behind the Government?s decision is larger public interest.The above discussion leads us to the conclusion that right to life guaranteed by Article 21 means right to life with human dignity. Communitarian dignity has been recognised by this Court. While balancing communitarian dignity vis-à-vis the dignity of private individuals, the scales must tilt in favour of communitarian dignity. The laudable objective with which the State Governments have introduced compulsory service bonds is to protect the fundamental right of the deprived sections of the society guaranteed to them under Article 21 of the Constitution of India. The contention of the Appellants that their rights guaranteed under Article 21 of the Constitution of India have been violated ise Appellants who are required to work for a short period on a decent stipend cannot complain that they are made to perform ‘forced labour?, especially after the Appellants have taken an informed decision to avail the benefits of admission in government medical colleges and received subsidized education. By no means, the service rendered by the Appellants in Government hospitals would fall under the expression of ‘forced labour?.Specific performance of contract for personal service is not permissible under the Specific Relief Act, therefore, there cannot be a decree for specific performance of a contract of personal nature. Noneof the StateGovernments have made an attempt to enforce the contracts entered into by them with the Appellants through the service bonds. We are not in agreement with the submission of Mr. Ahmadi that the compulsory bonds fall foul of the Specific Relief Act.39. The argument advanced on behalf of the Appellants that compulsory bonds placed a restraint on their profession and thus, would be contrary to Section 27 of the Indian Contract Act, 1872. The High Court of Calcutta repelled this submission by holding that the compulsory bond does not amount to any restraint on the professional activity of the Appellants. The High Court observed that the Appellants are offered the job of Medical Officer in the State of West Bengal and that the covenant in the compulsory bond operates only during the period of such employment. Relying upon the dictum of Lord Morris in Esso Petroleum v. Harper?s Garage (Stourport) Ltd., 1967 1 All ER 699 that if A made a contract under which he willingly agreed to serve B on reasonable terms for a few years and to give his whole working time to B, it would be surprising indeed, if it were sought to describe the contract as being in restraint of trade; in fact, such a contract would very likely be for the advancement of trade?, the High Court concluded that a contract entered into by Appellants to serve the government for a few years under reasonable terms cannot be described as one in restraint of trade. We are in agreement with the findings recorded by the High Court of Calcutta. Therefore, we are of the considered opinion that the conditions of compulsory bonds for admission to post-graduate and super-Speciality courses in government medical colleges are not in violation of Section 27 of the Indian Contract Act, 1872. | 0 | 9,339 | 1,302 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
and peace. The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the right of every person to the enjoyment of the highest attainable standard of physical and mental health. ICESCR mandates the States Parties to achieve full realization of the aforementioned right through the creation of conditions which would assure to all, medical service and medical attention in the event of sickness, inter alia. 33. The above discussion leads us to the conclusion that right to life guaranteed by Article 21 means right to life with human dignity. Communitarian dignity has been recognised by this Court. While balancing communitarian dignity vis-à-vis the dignity of private individuals, the scales must tilt in favour of communitarian dignity. The laudable objective with which the State Governments have introduced compulsory service bonds is to protect the fundamental right of the deprived sections of the society guaranteed to them under Article 21 of the Constitution of India. The contention of the Appellants that their rights guaranteed under Article 21 of the Constitution of India have been violated is rejected. Article 23 34. Article 23 reads as follows:23. ?(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.?35. The submission of Mr. Huzefa Ahmadi, learned Senior Counsel for the Appellants is that the conditions of the bond per se amount to ‘forced labour? and thus are violative of Article 23 (1) of the Constitution. Mr. Dwivedi expostulated the said submission by referring to Article 23 (2) which confers power on the State to impose compulsory service for public purpose. Reliance was placed upon the Constituent Assembly Debates by Mr. Dwivedi explaining the scope of compulsory employment for public purpose under Article 23 (2) of the Constitution of India. The Appellants who are required to work for a short period on a decent stipend cannot complain that they are made to perform ‘forced labour?, especially after the Appellants have taken an informed decision to avail the benefits of admission in government medical colleges and received subsidized education. By no means, the service rendered by the Appellants in Government hospitals would fall under the expression of ‘forced labour?. 36. The 13 th Amendment to the U.S. Constitution prohibits slavery and involuntary servitude. The Supreme Court of the United States held that compulsory employment for public purpose does not amount to ‘involuntary servitude? in Robertson v. Baldwin (165 U.S. 275 (1897) [US Supreme Court]) and Butler v. Perry ((1916), 240 U.S. 328, 329). Article 23 (2) of the Constitution enables the State Governments to require the Appellants to do compulsory service in the Government hospitals which is undoubtedly for the benefit of the public. III. Contract of Personal Service 37. Section 14 of the Specific Relief Act, 1963 prohibits the enforcement of contracts of personal service. The submission of Mr. Ahmadi that the contract of personal service, in the form of a compulsory bond, is not enforceable was dealt with by Mr. Dwivedi, who argued that the State Governments do not intend to enforce the contract in a court of law. It is trite law that Courts do not ordinarily enforce performance of contracts of personal character, such as a contract of employment (Nandganj Sihori Sugar Co. Ltd. Rae Bareli & Anr. v. Badri Nath Dixit & Ors. (1991) 3 SCC 54 ).Reference can be made to the judgment of Jessel, M.R., in Rigby v. Connol (1880) 14 Ch D 482, 487 wherein he held that:?The courts have never dreamt of enforcing agreements strictly personal in their nature, whether they are agreements of hiring and service, being the common relation of master and servant ….?38. Specific performance of contract for personal service is not permissible under the Specific Relief Act, therefore, there cannot be a decree for specific performance of a contract of personal nature. None of the State Governments have made an attempt to enforce the contracts entered into by them with the Appellants through the service bonds. We are not in agreement with the submission of Mr. Ahmadi that the compulsory bonds fall foul of the Specific Relief Act. IV. Restraint on Profession 39. The argument advanced on behalf of the Appellants that compulsory bonds placed a restraint on their profession and thus, would be contrary to Section 27 of the Indian Contract Act, 1872. The High Court of Calcutta repelled this submission by holding that the compulsory bond does not amount to any restraint on the professional activity of the Appellants. The High Court observed that the Appellants are offered the job of Medical Officer in the State of West Bengal and that the covenant in the compulsory bond operates only during the period of such employment. Relying upon the dictum of Lord Morris in Esso Petroleum v. Harper?s Garage (Stourport) Ltd., 1967 1 All ER 699 that if A made a contract under which he willingly agreed to serve B on reasonable terms for a few years and to give his whole working time to B, it would be surprising indeed, if it were sought to describe the contract as being in restraint of trade; in fact, such a contract would very likely be for the advancement of trade?, the High Court concluded that a contract entered into by Appellants to serve the government for a few years under reasonable terms cannot be described as one in restraint of trade. We are in agreement with the findings recorded by the High Court of Calcutta. Therefore, we are of the considered opinion that the conditions of compulsory bonds for admission to post-graduate and super-Speciality courses in government medical colleges are not in violation of Section 27 of the Indian Contract Act, 1872.
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0
### Explanation:
legislate. The Notifications issued by the State Governments imposing a condition of execution of compulsory bonds at the time of admission to post- graduate courses and super Speciality courses cannot be said to be vitiated due to lack of authority or competence. The field of bonds requiring compulsory employment is not covered by any Central Legislation. Therefore, the submissions made on behalf of the Appellants that the States lacked competence to issue the notifications as the field is occupied are rejected.Violation of Fundamentale all, the State Governments have taken into account the need to provide health care to the people and the scarcity of super specialists in their States. Consequently, a policy decision taken by the State Governments to utilize the services of doctors who were beneficiaries of Government assistance to complete their education cannot be termed arbitrary., we are in agreement with the learned counsel for the doctors that the period of compulsory service and the exit should be, the Notifications that were issued by the State Governments fall foul of Article 19(1)(g). The compulsory bond executed by the Appellants is at the time of their admissions into post-graduate and super Speciality courses. Conditions imposed for admission to a medical college will not directly violate the right of an individual to carry on his profession. The right to carry on the profession would start on the completion of the course. At the outset, there is no doubt that no right inheres in an individual to receive higher education. Violation of a right guaranteed under Article 19(1)(g) does not arise in a case pertaining to admission to a college. There is no doubt, that the condition that is imposed has a connection with the professional activity of a doctor on completion of the course. However, the Appellants have, without any protest, accepted the admissions and executed the compulsory bonds. Execution of bonds is part of a composite package. We are in agreement with the judgment of the Calcutta High Court that the Appellants have not been able to succeed in their attempt of assailing the Notifications for being violative of Article 19(1)(g) of the Constitution. We uphold the said finding of the Division. We accept the submission of Mr.Rakesh Dwivedi, learned Senior Counsel for the State of West Bengal that the positiveof the Stateto uphold the dignity of a larger section of the society is to protect the rights conferred on them by Article 21 of the Constitution.The immediate need of the deprived sections of the society to have proper health care was the reason behind the policy decision of the Government. The objective of the policy is to ensure that specialist health care is extended to the have-notsstated earlier, the right that is claimed by the Appellants is to make an individual choice to carry on their profession which might be hindered by the decision of the Government. On the other hand, the basic idea behind the Government?s decision is larger public interest.The above discussion leads us to the conclusion that right to life guaranteed by Article 21 means right to life with human dignity. Communitarian dignity has been recognised by this Court. While balancing communitarian dignity vis-à-vis the dignity of private individuals, the scales must tilt in favour of communitarian dignity. The laudable objective with which the State Governments have introduced compulsory service bonds is to protect the fundamental right of the deprived sections of the society guaranteed to them under Article 21 of the Constitution of India. The contention of the Appellants that their rights guaranteed under Article 21 of the Constitution of India have been violated ise Appellants who are required to work for a short period on a decent stipend cannot complain that they are made to perform ‘forced labour?, especially after the Appellants have taken an informed decision to avail the benefits of admission in government medical colleges and received subsidized education. By no means, the service rendered by the Appellants in Government hospitals would fall under the expression of ‘forced labour?.Specific performance of contract for personal service is not permissible under the Specific Relief Act, therefore, there cannot be a decree for specific performance of a contract of personal nature. Noneof the StateGovernments have made an attempt to enforce the contracts entered into by them with the Appellants through the service bonds. We are not in agreement with the submission of Mr. Ahmadi that the compulsory bonds fall foul of the Specific Relief Act.39. The argument advanced on behalf of the Appellants that compulsory bonds placed a restraint on their profession and thus, would be contrary to Section 27 of the Indian Contract Act, 1872. The High Court of Calcutta repelled this submission by holding that the compulsory bond does not amount to any restraint on the professional activity of the Appellants. The High Court observed that the Appellants are offered the job of Medical Officer in the State of West Bengal and that the covenant in the compulsory bond operates only during the period of such employment. Relying upon the dictum of Lord Morris in Esso Petroleum v. Harper?s Garage (Stourport) Ltd., 1967 1 All ER 699 that if A made a contract under which he willingly agreed to serve B on reasonable terms for a few years and to give his whole working time to B, it would be surprising indeed, if it were sought to describe the contract as being in restraint of trade; in fact, such a contract would very likely be for the advancement of trade?, the High Court concluded that a contract entered into by Appellants to serve the government for a few years under reasonable terms cannot be described as one in restraint of trade. We are in agreement with the findings recorded by the High Court of Calcutta. Therefore, we are of the considered opinion that the conditions of compulsory bonds for admission to post-graduate and super-Speciality courses in government medical colleges are not in violation of Section 27 of the Indian Contract Act, 1872.
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Mangala Waman Karandikar (D) TR. LRS Vs. Prakash Damodar Ranade | taken place over century. Without going into extensive study of precedents, in short, we may only state that the path and development of law of interpretation has been a progress from a stiff formulism to a strict rationalism.(Wigmore JH, Wigmore on Evidence, Vol. 4 (1915) 25 The Yale Law Journal 163.) 11. It is clear from the reading of the contract that the parties had intended to transfer business from appellant to respondent during the contractual period. This agreement was not meant as a lease or license for the respondent to conduct business. However, the respondent contends that the meaning of the document should not be culled solely with reference to the language used in the document, rather extrinsic evidence needs to be utilized before adducing proper meaning to the contract. In this regard he submits that on consideration of all the extrinsic evidence, the contract should be read as a leave and license agreement, which is covered under the Bombay Rent Act. He draws his support from Section 95 of the Indian evidence Act to state that the document needs to be interpreted having regard to external evidence such as receipts of payment under the contract addressed as rent receipts etc. 12. It may be noticed that the High Court had appropriately identified the question of law in the following manner: 15. The debate therefore revolves around the question as to whether the agreement of 7th February, 1963 was a license to conduct a business in the premises or was a license to run the existing business which was being run by the respondents in the suit premises. Does the document create an interest in the premises or in the business? 13. The High Court in order to answer the question utilized Section 95 of the Evidence Act, which reads as under: 95. Evidence as to document unmeaning in reference to existing facts.—When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense. Illustration A sells to B, by deed, my house in Calcutta. A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house of Howrah. Aforesaid Section is part of Chapter VI, which deals with Of the exclusion of Oral by documentary evidence containing Section 91 to 100. Section 92 reads as under: 92. Exclusion of evidence of oral agreement.—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:… Proviso (6).—Any fact may be proved which shows in what manner the language of a document is related to existing facts. 14. It is manifest from these two sections that it is only in cases where the terms of the document leave the question in doubt, then resort could be had to the proviso. But when a document is a straightforward one and presents no difficulty in construing it, the proviso does not apply. In this regard, we may state that Section 95 only builds on the proviso 6 of Section 92. 15. If the contrary view is adopted as correct it would render Section 92 of the Evidence Act, otiose and also enlarge the ambit of proviso 6 beyond the main Section itself. Such interpretation, provided by the High Court violates basic tenants of legal interpretation.(Rohitash Kumar v. Om Prakash Sharma, (2013) 11 SCC 451 at pg. 459) Section 92 specifically prohibits evidence of any oral agreement or statement which would contradict, vary, add to or subtract from its terms. If, as stated by the learned Judge, oral evidence could be received to show that the terms of the document were really different from those expressed therein, it would amount to according permission to give evidence to contradict or vary those terms and as such it comes within the inhibitions of Section 92. It could not be postulated that the legislature intended to nullify the object of Section 92 by enacting exceptions to that section. 16. In line with the law laid down, it is clear that the contract mandated continuation of the business in the name of Karandikar Brothers by paying royalties of Rs. 90 per month. Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language. It may not be out of context to note that the extension of the contract was on same conditions. 17. On consideration of the matter, the High Court erred in appreciating the ambit of Section 95, which led to consideration of evidence which only indicates breach rather than ambiguity in the language of contract. The evidence also points that the license was created for continuation of existing business, rather than license/lease of shop premises. If the meaning provided by the High Court is accepted, then it would amount to Courts substituting the bargain by the parties. The counsel for respondent has emphasized much on the receipt of payment, which mentions the term rent received. However, in line with the clear unambiguous language of the contract, such evidence cannot be considered in the eyes of law. 18. Moreover, the contention that the aforesaid situation is covered by the Bombay Rent Act is misplaced. Once we have determined that the impugned agreement was a license for continuing existing business, Bombay Rent Act does not cover such arrangements. Therefore, the jurisdiction of the trail court is accordingly not ousted. | 1[ds]9. Having heard both the parties at some length, at the outset before we analyse this case, we need to observe some principles on contractual interpretation. Unlike a statutory interpretation, which is even more difficult due to assimilation of individual intention of law makers, contractual interpretation depends on the intentions expressed by the parties and dredging out the true meaning is an iterative process for the Courts. In any case, the first tool for interpreting, whether it be a law or contract is to read the same.11. It is clear from the reading of the contract that the parties had intended to transfer business from appellant to respondent during the contractual period. This agreement was not meant as a lease or license for the respondent to conduct business. However, the respondent contends that the meaning of the document should not be culled solely with reference to the language used in the document, rather extrinsic evidence needs to be utilized before adducing proper meaning to the contract. In this regard he submits that on consideration of all the extrinsic evidence, the contract should be read as a leave and license agreement, which is covered under the Bombay Rent Act. He draws his support from Section 95 of the Indian evidence Act to state that the document needs to be interpreted having regard to external evidence such as receipts of payment under the contract addressed as rent receipts etc.14. It is manifest from these two sections that it is only in cases where the terms of the document leave the question in doubt, then resort could be had to the proviso. But when a document is a straightforward one and presents no difficulty in construing it, the proviso does not apply. In this regard, we may state that Section 95 only builds on the proviso 6 of Section 92.15. If the contrary view is adopted as correct it would render Section 92 of the Evidence Act, otiose and also enlarge the ambit of proviso 6 beyond the main Section itself. Such interpretation, provided by the High Court violates basic tenants of legal interpretation.(Rohitash Kumar v. Om Prakash Sharma, (2013) 11 SCC 451 at pg. 459) Section 92 specifically prohibits evidence of any oral agreement or statement which would contradict, vary, add to or subtract from its terms. If, as stated by the learned Judge, oral evidence could be received to show that the terms of the document were really different from those expressed therein, it would amount to according permission to give evidence to contradict or vary those terms and as such it comes within the inhibitions of Section 92. It could not be postulated that the legislature intended to nullify the object of Section 92 by enacting exceptions to that section.16. In line with the law laid down, it is clear that the contract mandated continuation of the business in the name of Karandikar Brothers by paying royalties of Rs. 90 per month. Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language. It may not be out of context to note that the extension of the contract was on same conditions.17. On consideration of the matter, the High Court erred in appreciating the ambit of Section 95, which led to consideration of evidence which only indicates breach rather than ambiguity in the language of contract. The evidence also points that the license was created for continuation of existing business, rather than license/lease of shop premises. If the meaning provided by the High Court is accepted, then it would amount to Courts substituting the bargain by the parties. The counsel for respondent has emphasized much on the receipt of payment, which mentions the term rent received. However, in line with the clear unambiguous language of the contract, such evidence cannot be considered in the eyes of law.18. Moreover, the contention that the aforesaid situation is covered by the Bombay Rent Act is misplaced. Once we have determined that the impugned agreement was a license for continuing existing business, Bombay Rent Act does not cover such arrangements. Therefore, the jurisdiction of the trail court is accordingly not ousted. | 1 | 3,066 | 777 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
taken place over century. Without going into extensive study of precedents, in short, we may only state that the path and development of law of interpretation has been a progress from a stiff formulism to a strict rationalism.(Wigmore JH, Wigmore on Evidence, Vol. 4 (1915) 25 The Yale Law Journal 163.) 11. It is clear from the reading of the contract that the parties had intended to transfer business from appellant to respondent during the contractual period. This agreement was not meant as a lease or license for the respondent to conduct business. However, the respondent contends that the meaning of the document should not be culled solely with reference to the language used in the document, rather extrinsic evidence needs to be utilized before adducing proper meaning to the contract. In this regard he submits that on consideration of all the extrinsic evidence, the contract should be read as a leave and license agreement, which is covered under the Bombay Rent Act. He draws his support from Section 95 of the Indian evidence Act to state that the document needs to be interpreted having regard to external evidence such as receipts of payment under the contract addressed as rent receipts etc. 12. It may be noticed that the High Court had appropriately identified the question of law in the following manner: 15. The debate therefore revolves around the question as to whether the agreement of 7th February, 1963 was a license to conduct a business in the premises or was a license to run the existing business which was being run by the respondents in the suit premises. Does the document create an interest in the premises or in the business? 13. The High Court in order to answer the question utilized Section 95 of the Evidence Act, which reads as under: 95. Evidence as to document unmeaning in reference to existing facts.—When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense. Illustration A sells to B, by deed, my house in Calcutta. A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house of Howrah. Aforesaid Section is part of Chapter VI, which deals with Of the exclusion of Oral by documentary evidence containing Section 91 to 100. Section 92 reads as under: 92. Exclusion of evidence of oral agreement.—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:… Proviso (6).—Any fact may be proved which shows in what manner the language of a document is related to existing facts. 14. It is manifest from these two sections that it is only in cases where the terms of the document leave the question in doubt, then resort could be had to the proviso. But when a document is a straightforward one and presents no difficulty in construing it, the proviso does not apply. In this regard, we may state that Section 95 only builds on the proviso 6 of Section 92. 15. If the contrary view is adopted as correct it would render Section 92 of the Evidence Act, otiose and also enlarge the ambit of proviso 6 beyond the main Section itself. Such interpretation, provided by the High Court violates basic tenants of legal interpretation.(Rohitash Kumar v. Om Prakash Sharma, (2013) 11 SCC 451 at pg. 459) Section 92 specifically prohibits evidence of any oral agreement or statement which would contradict, vary, add to or subtract from its terms. If, as stated by the learned Judge, oral evidence could be received to show that the terms of the document were really different from those expressed therein, it would amount to according permission to give evidence to contradict or vary those terms and as such it comes within the inhibitions of Section 92. It could not be postulated that the legislature intended to nullify the object of Section 92 by enacting exceptions to that section. 16. In line with the law laid down, it is clear that the contract mandated continuation of the business in the name of Karandikar Brothers by paying royalties of Rs. 90 per month. Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language. It may not be out of context to note that the extension of the contract was on same conditions. 17. On consideration of the matter, the High Court erred in appreciating the ambit of Section 95, which led to consideration of evidence which only indicates breach rather than ambiguity in the language of contract. The evidence also points that the license was created for continuation of existing business, rather than license/lease of shop premises. If the meaning provided by the High Court is accepted, then it would amount to Courts substituting the bargain by the parties. The counsel for respondent has emphasized much on the receipt of payment, which mentions the term rent received. However, in line with the clear unambiguous language of the contract, such evidence cannot be considered in the eyes of law. 18. Moreover, the contention that the aforesaid situation is covered by the Bombay Rent Act is misplaced. Once we have determined that the impugned agreement was a license for continuing existing business, Bombay Rent Act does not cover such arrangements. Therefore, the jurisdiction of the trail court is accordingly not ousted.
### Response:
1
### Explanation:
9. Having heard both the parties at some length, at the outset before we analyse this case, we need to observe some principles on contractual interpretation. Unlike a statutory interpretation, which is even more difficult due to assimilation of individual intention of law makers, contractual interpretation depends on the intentions expressed by the parties and dredging out the true meaning is an iterative process for the Courts. In any case, the first tool for interpreting, whether it be a law or contract is to read the same.11. It is clear from the reading of the contract that the parties had intended to transfer business from appellant to respondent during the contractual period. This agreement was not meant as a lease or license for the respondent to conduct business. However, the respondent contends that the meaning of the document should not be culled solely with reference to the language used in the document, rather extrinsic evidence needs to be utilized before adducing proper meaning to the contract. In this regard he submits that on consideration of all the extrinsic evidence, the contract should be read as a leave and license agreement, which is covered under the Bombay Rent Act. He draws his support from Section 95 of the Indian evidence Act to state that the document needs to be interpreted having regard to external evidence such as receipts of payment under the contract addressed as rent receipts etc.14. It is manifest from these two sections that it is only in cases where the terms of the document leave the question in doubt, then resort could be had to the proviso. But when a document is a straightforward one and presents no difficulty in construing it, the proviso does not apply. In this regard, we may state that Section 95 only builds on the proviso 6 of Section 92.15. If the contrary view is adopted as correct it would render Section 92 of the Evidence Act, otiose and also enlarge the ambit of proviso 6 beyond the main Section itself. Such interpretation, provided by the High Court violates basic tenants of legal interpretation.(Rohitash Kumar v. Om Prakash Sharma, (2013) 11 SCC 451 at pg. 459) Section 92 specifically prohibits evidence of any oral agreement or statement which would contradict, vary, add to or subtract from its terms. If, as stated by the learned Judge, oral evidence could be received to show that the terms of the document were really different from those expressed therein, it would amount to according permission to give evidence to contradict or vary those terms and as such it comes within the inhibitions of Section 92. It could not be postulated that the legislature intended to nullify the object of Section 92 by enacting exceptions to that section.16. In line with the law laid down, it is clear that the contract mandated continuation of the business in the name of Karandikar Brothers by paying royalties of Rs. 90 per month. Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language. It may not be out of context to note that the extension of the contract was on same conditions.17. On consideration of the matter, the High Court erred in appreciating the ambit of Section 95, which led to consideration of evidence which only indicates breach rather than ambiguity in the language of contract. The evidence also points that the license was created for continuation of existing business, rather than license/lease of shop premises. If the meaning provided by the High Court is accepted, then it would amount to Courts substituting the bargain by the parties. The counsel for respondent has emphasized much on the receipt of payment, which mentions the term rent received. However, in line with the clear unambiguous language of the contract, such evidence cannot be considered in the eyes of law.18. Moreover, the contention that the aforesaid situation is covered by the Bombay Rent Act is misplaced. Once we have determined that the impugned agreement was a license for continuing existing business, Bombay Rent Act does not cover such arrangements. Therefore, the jurisdiction of the trail court is accordingly not ousted.
|
Rajendra Narain Singh and Others Vs. State of Bihar and Others | basis of the date of appointment, officiating or permanent, whichever is earlier, in the Bihar Police in the light of Finance Department Resolution No. 3521 dated 11-4-77 and judgment of the High Court in C.W.J.C. No. 2011 /76.. "8. In the context of the present controversy two important facts which have to be kept in mind are: (i) the appellants were promoted to officiate as Deputy Superintendents of Police in the year 1965 (other promotees like the appellants had also been officiating as Deputy Superintendents of Police from different dates between 1948 and 1970) and (ii) by Government order dated December 30, 1977 fifty-four temporary posts of Deputy Superintendent of Police created between 1948 an d 1970 were made permanent from the dates these posts were created. The only question here is whether there was anything wrong in fixing the inter-se seniority of the promotees and the direct recruits on the basis of continuous officiation by the promotees. It is well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power. (see B. N. Nagarajan v. State of Mysore and Sant Ram Sharma v. State of Rajasthan(2). In the case before us there is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees. The determination of seniority on the basis of continuous officiation has been held valid in S. B. Patwardhans case (supra). The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of the Constitution.9. It is however contended on behalf of the respondents who were the writ petitioners in the High Court that rule 3 of the Bihar Police Service (Recruitment) Rules, 1953 framed under the Proviso to Article 309 of the Constitution, though it is not a seniority rule, does not permit the course adopted in this case by the Government, namely, converting the temporary posts created between 1948 and 1970 into permanent posts in the year 1977 with effect from the dates on which the temporary posts had been created. Under rule 3 the Governor has to decide in each year the number of vacancies to be filled in that year and to secure not less than half of the total vacancies for the promotees. The argument is that for the year 1965 or for that matter for any year prior to 1977 when the notification under challenge was issued, the Governor had duly exercised his power under rule 3 in that very year, and adding to the number of existing permanent posts by an order made in a subsequent year after the Governor had ascertained the number of vacancies required to be filled and had them filled according to the ratio prescribed by rule 3 , would disturb that ratio and contravene rule 3. We are unable to accept this contention as correct. In the year 1977 exigencies of the situation prompted the Government to convert the temporary posts created between 1948 and 1970 into permanent posts with effect from the dates on which the temporary posts had been created. The appellants were promoted in 1965 to officiate as Deputy Superintendents of Police in posts which were then temporary. The Governor while exercising his powers u nder rule 3 in the year 1965 could not naturally take into account the number of posts made permanent in 1977 with effect from 1965. Whatever was done subsequently to increase the strength of the cadre in 1965 under compulsion of the situation cannot be said to have affected the validity of the action taken by the Governor in 1965. In S. G. Jaisinghani v. Union of India &Ors.(1) this Court held that when the quota was fixed for the two sources of recruitment, it could not be altered according to exigencies of the situation. But rule 3 is not really a quota rule, it does not lay down a fixed proportion, all it does is to insist that the number of vacancies to be filled by promotion should not be less than half of the total number of vacancies to be filled in any year. Adding to the number of vacancies and filling them by promotees does not certainly violate the rule requiring that not less than half of the vacancies must be filled by promotees. What the Governor had done in a previous year in exercise of his powers under rule 3, if it was valid then, is not invalidated by the subsequent conversion of some posts which were temporary at the time into permanent posts with effect from the earlier year. If for administrative reasons such a measure was considered necessary, there is nothing in rule 3 to suggest a bar. Rule 3, as already mentioned, does not prescribe a fixed proportion of promotees and direct recruits for the vacancies to be filled in any year but only ensures not less than half of the vacancies for the promotees; that being so, filling more than half of the vacancies by promotees, cannot be an infringement of that rule.10. In the view we have taken, it is unnecessary to consider two other subsidiary questions raised:(1) whether the cadre consisted only of permanent posts or included both permanent and temporary posts: according to the appellants the cadre should include both temporary and permanent officers in the absence of any rule to the contrary. In this Judgment in reaching the conclusion stated above we have assumed that the cadre consisted of permanent officers only;(ii) Whether rule 3 has ever been followed since the Rules were framed in 1953; according to the appellants rule 3 has really not been observed in any of those years and that no question of contravention of the rule can therefore be raised in this case.11. | 1[ds]It is well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power. (see B. N. Nagarajan v. State of Mysore and Sant Ram Sharma v. State of Rajasthan(2). In the case before us there is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees. The determination of seniority on the basis of continuous officiation has been held valid in S. B. Patwardhans case (supra). The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of theare unable to accept this contention as correct. In the year 1977 exigencies of the situation prompted the Government to convert the temporary posts created between 1948 and 1970 into permanent posts with effect from the dates on which the temporary posts had been created. The appellants were promoted in 1965 to officiate as Deputy Superintendents of Police in posts which were then temporary. The Governor while exercising his powers u nder rule 3 in the year 1965 could not naturally take into account the number of posts made permanent in 1977 with effect from 1965. Whatever was done subsequently to increase the strength of the cadre in 1965 under compulsion of the situation cannot be said to have affected the validity of the action taken by the Governor in 1965. In S. G. Jaisinghani v. Union of India &Ors.(1) this Court held that when the quota was fixed for the two sources of recruitment, it could not be altered according to exigencies of the situation. But rule 3 is not really a quota rule, it does not lay down a fixed proportion, all it does is to insist that the number of vacancies to be filled by promotion should not be less than half of the total number of vacancies to be filled in any year. Adding to the number of vacancies and filling them by promotees does not certainly violate the rule requiring that not less than half of the vacancies must be filled by promotees. What the Governor had done in a previous year in exercise of his powers under rule 3, if it was valid then, is not invalidated by the subsequent conversion of some posts which were temporary at the time into permanent posts with effect from the earlier year. If for administrative reasons such a measure was considered necessary, there is nothing in rule 3 to suggest a bar. Rule 3, as already mentioned, does not prescribe a fixed proportion of promotees and direct recruits for the vacancies to be filled in any year but only ensures not less than half of the vacancies for the promotees; that being so, filling more than half of the vacancies by promotees, cannot be an infringement of thatis well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power. (see B. N. Nagarajan v. State of Mysore and Sant Ram Sharma v. State of Rajasthan(2). In the case before us there is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees. The determination of seniority on the basis of continuous officiation has been held valid in S. B. Patwardhans case (supra). The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of the | 1 | 2,921 | 698 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
basis of the date of appointment, officiating or permanent, whichever is earlier, in the Bihar Police in the light of Finance Department Resolution No. 3521 dated 11-4-77 and judgment of the High Court in C.W.J.C. No. 2011 /76.. "8. In the context of the present controversy two important facts which have to be kept in mind are: (i) the appellants were promoted to officiate as Deputy Superintendents of Police in the year 1965 (other promotees like the appellants had also been officiating as Deputy Superintendents of Police from different dates between 1948 and 1970) and (ii) by Government order dated December 30, 1977 fifty-four temporary posts of Deputy Superintendent of Police created between 1948 an d 1970 were made permanent from the dates these posts were created. The only question here is whether there was anything wrong in fixing the inter-se seniority of the promotees and the direct recruits on the basis of continuous officiation by the promotees. It is well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power. (see B. N. Nagarajan v. State of Mysore and Sant Ram Sharma v. State of Rajasthan(2). In the case before us there is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees. The determination of seniority on the basis of continuous officiation has been held valid in S. B. Patwardhans case (supra). The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of the Constitution.9. It is however contended on behalf of the respondents who were the writ petitioners in the High Court that rule 3 of the Bihar Police Service (Recruitment) Rules, 1953 framed under the Proviso to Article 309 of the Constitution, though it is not a seniority rule, does not permit the course adopted in this case by the Government, namely, converting the temporary posts created between 1948 and 1970 into permanent posts in the year 1977 with effect from the dates on which the temporary posts had been created. Under rule 3 the Governor has to decide in each year the number of vacancies to be filled in that year and to secure not less than half of the total vacancies for the promotees. The argument is that for the year 1965 or for that matter for any year prior to 1977 when the notification under challenge was issued, the Governor had duly exercised his power under rule 3 in that very year, and adding to the number of existing permanent posts by an order made in a subsequent year after the Governor had ascertained the number of vacancies required to be filled and had them filled according to the ratio prescribed by rule 3 , would disturb that ratio and contravene rule 3. We are unable to accept this contention as correct. In the year 1977 exigencies of the situation prompted the Government to convert the temporary posts created between 1948 and 1970 into permanent posts with effect from the dates on which the temporary posts had been created. The appellants were promoted in 1965 to officiate as Deputy Superintendents of Police in posts which were then temporary. The Governor while exercising his powers u nder rule 3 in the year 1965 could not naturally take into account the number of posts made permanent in 1977 with effect from 1965. Whatever was done subsequently to increase the strength of the cadre in 1965 under compulsion of the situation cannot be said to have affected the validity of the action taken by the Governor in 1965. In S. G. Jaisinghani v. Union of India &Ors.(1) this Court held that when the quota was fixed for the two sources of recruitment, it could not be altered according to exigencies of the situation. But rule 3 is not really a quota rule, it does not lay down a fixed proportion, all it does is to insist that the number of vacancies to be filled by promotion should not be less than half of the total number of vacancies to be filled in any year. Adding to the number of vacancies and filling them by promotees does not certainly violate the rule requiring that not less than half of the vacancies must be filled by promotees. What the Governor had done in a previous year in exercise of his powers under rule 3, if it was valid then, is not invalidated by the subsequent conversion of some posts which were temporary at the time into permanent posts with effect from the earlier year. If for administrative reasons such a measure was considered necessary, there is nothing in rule 3 to suggest a bar. Rule 3, as already mentioned, does not prescribe a fixed proportion of promotees and direct recruits for the vacancies to be filled in any year but only ensures not less than half of the vacancies for the promotees; that being so, filling more than half of the vacancies by promotees, cannot be an infringement of that rule.10. In the view we have taken, it is unnecessary to consider two other subsidiary questions raised:(1) whether the cadre consisted only of permanent posts or included both permanent and temporary posts: according to the appellants the cadre should include both temporary and permanent officers in the absence of any rule to the contrary. In this Judgment in reaching the conclusion stated above we have assumed that the cadre consisted of permanent officers only;(ii) Whether rule 3 has ever been followed since the Rules were framed in 1953; according to the appellants rule 3 has really not been observed in any of those years and that no question of contravention of the rule can therefore be raised in this case.11.
### Response:
1
### Explanation:
It is well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power. (see B. N. Nagarajan v. State of Mysore and Sant Ram Sharma v. State of Rajasthan(2). In the case before us there is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees. The determination of seniority on the basis of continuous officiation has been held valid in S. B. Patwardhans case (supra). The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of theare unable to accept this contention as correct. In the year 1977 exigencies of the situation prompted the Government to convert the temporary posts created between 1948 and 1970 into permanent posts with effect from the dates on which the temporary posts had been created. The appellants were promoted in 1965 to officiate as Deputy Superintendents of Police in posts which were then temporary. The Governor while exercising his powers u nder rule 3 in the year 1965 could not naturally take into account the number of posts made permanent in 1977 with effect from 1965. Whatever was done subsequently to increase the strength of the cadre in 1965 under compulsion of the situation cannot be said to have affected the validity of the action taken by the Governor in 1965. In S. G. Jaisinghani v. Union of India &Ors.(1) this Court held that when the quota was fixed for the two sources of recruitment, it could not be altered according to exigencies of the situation. But rule 3 is not really a quota rule, it does not lay down a fixed proportion, all it does is to insist that the number of vacancies to be filled by promotion should not be less than half of the total number of vacancies to be filled in any year. Adding to the number of vacancies and filling them by promotees does not certainly violate the rule requiring that not less than half of the vacancies must be filled by promotees. What the Governor had done in a previous year in exercise of his powers under rule 3, if it was valid then, is not invalidated by the subsequent conversion of some posts which were temporary at the time into permanent posts with effect from the earlier year. If for administrative reasons such a measure was considered necessary, there is nothing in rule 3 to suggest a bar. Rule 3, as already mentioned, does not prescribe a fixed proportion of promotees and direct recruits for the vacancies to be filled in any year but only ensures not less than half of the vacancies for the promotees; that being so, filling more than half of the vacancies by promotees, cannot be an infringement of thatis well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power. (see B. N. Nagarajan v. State of Mysore and Sant Ram Sharma v. State of Rajasthan(2). In the case before us there is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees. The determination of seniority on the basis of continuous officiation has been held valid in S. B. Patwardhans case (supra). The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of the
|
Hemant Kumar Verma & Ors Vs. Employees State Insurance Corporation & Ors | of reduced Bond period & Bond amount in lieu, would also be extended to (i) all existing students (MBBS/BDS); (ii) Fresh UG (MBBS/BDS) pass-outs; and (ii) UG (MBBS/BDS) pass-outs already serving ESIC under Bond. 2.2 In case of pass-outs already serving under Bond, if the length of service rendered is in excess of 01 year, they may be relieved without payment to ESIC for left over Bond period. (iii) The petitioners completed their one year compulsory bond period between 2019 and 2020. Though they were not under any compulsion to serve beyond a year, as stipulated in the Memorandum dated 28 July 2020, they have continued to serve of their own volition. (iv) The petitioners cannot be equated to IMO-II doctors to claim the 50% reservation available to in-service doctors for the following reasons: (a) Regular medical officers in ESIC are recruited by advertising vacancies through the Recruitment Regulations of the post; (b) The petitioners were serving the bond condition after completion of their studies in ESIC medical colleges. Thus, they are not recruited and cannot be called in-service doctors; and (c) The medical officers are governed by the ESIC Staff and Condition of Service Regulations 1959. The leave and other entitlements of the junior resident doctors are as stipulated in the ESIC Residency Scheme. A revised ESIC Residency Scheme was issued on 24 November 2020. Therefore, the medical officers and the junior residents are recruited under and are governed by distinct regulations. 5. We have heard Mr Sachin Patil, counsel appearing on behalf of the petitioners and Mr Manish Kumar Saran, counsel appearing on behalf of the respondents. 6. The contention of the petitioners is two-fold. One, the junior residents are inservice doctors. They must thus be treated on parity with IMO-II doctors for the provision of reservation benefits. The qualification, entitlement, duties, responsibilities, and pay scale of the junior residents and IMO-II doctors are the same. The only difference between the two categories is the mode of appointment. While the junior residents are appointed directly because of the bond that they are serving, the IMO-II doctors are appointed through a selection process. Two, junior residents are eligible for 50% reservation in respondent institutions on institutional preference. The Courts have recognized reservation through institutional preference in post-Graduate medical education in Saurabh Chaudri v. Union of India (2003) 11 SCC 146 and Yatin Kuma Jasubahi v. State of Gujarat (2019) 10 SCC 1. 7. The petitioners completed their undergraduate courses from ESIC medical/dental colleges and have already served out their one year compulsory bond period. The reduction in the bond period which was brought about on 28 July 2020 was also extended to all existing students as well as undergraduate (MBBS/BDS) pass-outs who were serving ESIC under bond. In view of the Memorandum dated 28 July 2020, it was open to the petitioners to leave after the completion of one year of junior residency. 8. On 2 February 2018, the revised ESIC Residency Scheme for UG pass-outs was issued. The scheme provides that the duties and responsibilities of the junior residents will be fixed by the competent authority. It mentions that they will be required to perform such work as may be needed in the legitimate interest of patient care in ESI health system (ESIS/ESIC) including Hospitals and dispensaries anywhere in India. The memorandum further states that the pay structure for the junior residents is similar to the scale for the junior residents under the Central Residency Scheme. The IMO-II doctors are governed by the ESIC Staff and Condition of Service Regulations 1959. The crucial difference between junior residents and IMO- II is that while the former is a contractual post where the doctors are employed directly due to the bond condition on the completion of the MBBS degree, the latter is a permanent post. Therefore, the mode of appointment and tenure of the posts vary. The IMO-IIs who pursue their post graduate education as in-service candidates will serve the respondent institution after completion of their post-graduate course. However, in the case of junior residents, since they are contractual employees who are serving the bond, they are not bound to serve the respondent-institution after the completion of their post-graduate studies. The reservation for in-service candidates is an incentive and an added benefit to the IMO-II doctors who will be serving in the respondent-institution till superannuation. In such circumstances, the argument of the petitioners that the junior residents and IMO-II doctors are at par with each other for the former to be treated as in-service doctors does not hold merit. 9. In Saurabh Chaudri (supra), a Constitution Bench of this Court approved reservation based on institutional preference as set out in Pradeep Jain v. Union of India (1984) 3 SCC 654. In Yatin Kuma Jasubahi (supra), a writ petition was filed challenging institutional preference in admission to postgraduate medical courses. It was the contention of the petitioners, in that case, that though institutional reservation had been upheld by this Court in Pradeep Jain (supra) and Saurabh Chaudri (supra), it would not be permissible because of the introduction of an All India examination in the form of NEET. Rejecting this argument, the three-Judge Bench of this Court held that postgraduate medical admissions through institutional preference are only made to candidates based on the rank received in the NEET examination. This Court in Saurabh Chaudri (supra) and Pradeep Jain (supra) held that institutional preference in post-graduate medical admissions is permissible and constitutional. However, this Court cannot issue a mandamus directing the respondent to conduct admissions through institutional preference. The decision of whether or not to provide institutional preference solely lies with the respondent-authority since it falls within the realm of policy. 10. On the above premises, there is a clear distinction in law between junior resident doctors and regularly recruited ESIC doctors. The in-service quota is, therefore, justifiably made available to the latter category. The petitioners cannot claim parity with regularly recruited insurance medical officers in seeking the benefit of the in-service quota. | 0[ds]7. The petitioners completed their undergraduate courses from ESIC medical/dental colleges and have already served out their one year compulsory bond period. The reduction in the bond period which was brought about on 28 July 2020 was also extended to all existing students as well as undergraduate (MBBS/BDS) pass-outs who were serving ESIC under bond. In view of the Memorandum dated 28 July 2020, it was open to the petitioners to leave after the completion of one year of junior residency.8. On 2 February 2018, the revised ESIC Residency Scheme for UG pass-outs was issued. The scheme provides that the duties and responsibilities of the junior residents will be fixed by the competent authority. It mentions that they will be required to perform such work as may be needed in the legitimate interest of patient care in ESI health system (ESIS/ESIC) including Hospitals and dispensaries anywhere in India. The memorandum further states that the pay structure for the junior residents is similar to the scale for the junior residents under the Central Residency Scheme. The IMO-II doctors are governed by the ESIC Staff and Condition of Service Regulations 1959. The crucial difference between junior residents and IMO- II is that while the former is a contractual post where the doctors are employed directly due to the bond condition on the completion of the MBBS degree, the latter is a permanent post. Therefore, the mode of appointment and tenure of the posts vary. The IMO-IIs who pursue their post graduate education as in-service candidates will serve the respondent institution after completion of their post-graduate course. However, in the case of junior residents, since they are contractual employees who are serving the bond, they are not bound to serve the respondent-institution after the completion of their post-graduate studies. The reservation for in-service candidates is an incentive and an added benefit to the IMO-II doctors who will be serving in the respondent-institution till superannuation. In such circumstances, the argument of the petitioners that the junior residents and IMO-II doctors are at par with each other for the former to be treated as in-service doctors does not hold merit.9. In Saurabh Chaudri (supra), a Constitution Bench of this Court approved reservation based on institutional preference as set out in Pradeep Jain v. Union of. In Yatin Kuma Jasubahi (supra), a writ petition was filed challenging institutional preference in admission to postgraduate medical courses. It was the contention of the petitioners, in that case, that though institutional reservation had been upheld by this Court in Pradeep Jain (supra) and Saurabh Chaudri (supra), it would not be permissible because of the introduction of an All India examination in the form of NEET. Rejecting this argument, the three-Judge Bench of this Court held that postgraduate medical admissions through institutional preference are only made to candidates based on the rank received in the NEET examination. This Court in Saurabh Chaudri (supra) and Pradeep Jain (supra) held that institutional preference in post-graduate medical admissions is permissible and constitutional. However, this Court cannot issue a mandamus directing the respondent to conduct admissions through institutional preference. The decision of whether or not to provide institutional preference solely lies with the respondent-authority since it falls within the realm of policy.10. On the above premises, there is a clear distinction in law between junior resident doctors and regularly recruited ESIC doctors. The in-service quota is, therefore, justifiably made available to the latter category. The petitioners cannot claim parity with regularly recruited insurance medical officers in seeking the benefit of the in-service quota. | 0 | 1,736 | 654 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
of reduced Bond period & Bond amount in lieu, would also be extended to (i) all existing students (MBBS/BDS); (ii) Fresh UG (MBBS/BDS) pass-outs; and (ii) UG (MBBS/BDS) pass-outs already serving ESIC under Bond. 2.2 In case of pass-outs already serving under Bond, if the length of service rendered is in excess of 01 year, they may be relieved without payment to ESIC for left over Bond period. (iii) The petitioners completed their one year compulsory bond period between 2019 and 2020. Though they were not under any compulsion to serve beyond a year, as stipulated in the Memorandum dated 28 July 2020, they have continued to serve of their own volition. (iv) The petitioners cannot be equated to IMO-II doctors to claim the 50% reservation available to in-service doctors for the following reasons: (a) Regular medical officers in ESIC are recruited by advertising vacancies through the Recruitment Regulations of the post; (b) The petitioners were serving the bond condition after completion of their studies in ESIC medical colleges. Thus, they are not recruited and cannot be called in-service doctors; and (c) The medical officers are governed by the ESIC Staff and Condition of Service Regulations 1959. The leave and other entitlements of the junior resident doctors are as stipulated in the ESIC Residency Scheme. A revised ESIC Residency Scheme was issued on 24 November 2020. Therefore, the medical officers and the junior residents are recruited under and are governed by distinct regulations. 5. We have heard Mr Sachin Patil, counsel appearing on behalf of the petitioners and Mr Manish Kumar Saran, counsel appearing on behalf of the respondents. 6. The contention of the petitioners is two-fold. One, the junior residents are inservice doctors. They must thus be treated on parity with IMO-II doctors for the provision of reservation benefits. The qualification, entitlement, duties, responsibilities, and pay scale of the junior residents and IMO-II doctors are the same. The only difference between the two categories is the mode of appointment. While the junior residents are appointed directly because of the bond that they are serving, the IMO-II doctors are appointed through a selection process. Two, junior residents are eligible for 50% reservation in respondent institutions on institutional preference. The Courts have recognized reservation through institutional preference in post-Graduate medical education in Saurabh Chaudri v. Union of India (2003) 11 SCC 146 and Yatin Kuma Jasubahi v. State of Gujarat (2019) 10 SCC 1. 7. The petitioners completed their undergraduate courses from ESIC medical/dental colleges and have already served out their one year compulsory bond period. The reduction in the bond period which was brought about on 28 July 2020 was also extended to all existing students as well as undergraduate (MBBS/BDS) pass-outs who were serving ESIC under bond. In view of the Memorandum dated 28 July 2020, it was open to the petitioners to leave after the completion of one year of junior residency. 8. On 2 February 2018, the revised ESIC Residency Scheme for UG pass-outs was issued. The scheme provides that the duties and responsibilities of the junior residents will be fixed by the competent authority. It mentions that they will be required to perform such work as may be needed in the legitimate interest of patient care in ESI health system (ESIS/ESIC) including Hospitals and dispensaries anywhere in India. The memorandum further states that the pay structure for the junior residents is similar to the scale for the junior residents under the Central Residency Scheme. The IMO-II doctors are governed by the ESIC Staff and Condition of Service Regulations 1959. The crucial difference between junior residents and IMO- II is that while the former is a contractual post where the doctors are employed directly due to the bond condition on the completion of the MBBS degree, the latter is a permanent post. Therefore, the mode of appointment and tenure of the posts vary. The IMO-IIs who pursue their post graduate education as in-service candidates will serve the respondent institution after completion of their post-graduate course. However, in the case of junior residents, since they are contractual employees who are serving the bond, they are not bound to serve the respondent-institution after the completion of their post-graduate studies. The reservation for in-service candidates is an incentive and an added benefit to the IMO-II doctors who will be serving in the respondent-institution till superannuation. In such circumstances, the argument of the petitioners that the junior residents and IMO-II doctors are at par with each other for the former to be treated as in-service doctors does not hold merit. 9. In Saurabh Chaudri (supra), a Constitution Bench of this Court approved reservation based on institutional preference as set out in Pradeep Jain v. Union of India (1984) 3 SCC 654. In Yatin Kuma Jasubahi (supra), a writ petition was filed challenging institutional preference in admission to postgraduate medical courses. It was the contention of the petitioners, in that case, that though institutional reservation had been upheld by this Court in Pradeep Jain (supra) and Saurabh Chaudri (supra), it would not be permissible because of the introduction of an All India examination in the form of NEET. Rejecting this argument, the three-Judge Bench of this Court held that postgraduate medical admissions through institutional preference are only made to candidates based on the rank received in the NEET examination. This Court in Saurabh Chaudri (supra) and Pradeep Jain (supra) held that institutional preference in post-graduate medical admissions is permissible and constitutional. However, this Court cannot issue a mandamus directing the respondent to conduct admissions through institutional preference. The decision of whether or not to provide institutional preference solely lies with the respondent-authority since it falls within the realm of policy. 10. On the above premises, there is a clear distinction in law between junior resident doctors and regularly recruited ESIC doctors. The in-service quota is, therefore, justifiably made available to the latter category. The petitioners cannot claim parity with regularly recruited insurance medical officers in seeking the benefit of the in-service quota.
### Response:
0
### Explanation:
7. The petitioners completed their undergraduate courses from ESIC medical/dental colleges and have already served out their one year compulsory bond period. The reduction in the bond period which was brought about on 28 July 2020 was also extended to all existing students as well as undergraduate (MBBS/BDS) pass-outs who were serving ESIC under bond. In view of the Memorandum dated 28 July 2020, it was open to the petitioners to leave after the completion of one year of junior residency.8. On 2 February 2018, the revised ESIC Residency Scheme for UG pass-outs was issued. The scheme provides that the duties and responsibilities of the junior residents will be fixed by the competent authority. It mentions that they will be required to perform such work as may be needed in the legitimate interest of patient care in ESI health system (ESIS/ESIC) including Hospitals and dispensaries anywhere in India. The memorandum further states that the pay structure for the junior residents is similar to the scale for the junior residents under the Central Residency Scheme. The IMO-II doctors are governed by the ESIC Staff and Condition of Service Regulations 1959. The crucial difference between junior residents and IMO- II is that while the former is a contractual post where the doctors are employed directly due to the bond condition on the completion of the MBBS degree, the latter is a permanent post. Therefore, the mode of appointment and tenure of the posts vary. The IMO-IIs who pursue their post graduate education as in-service candidates will serve the respondent institution after completion of their post-graduate course. However, in the case of junior residents, since they are contractual employees who are serving the bond, they are not bound to serve the respondent-institution after the completion of their post-graduate studies. The reservation for in-service candidates is an incentive and an added benefit to the IMO-II doctors who will be serving in the respondent-institution till superannuation. In such circumstances, the argument of the petitioners that the junior residents and IMO-II doctors are at par with each other for the former to be treated as in-service doctors does not hold merit.9. In Saurabh Chaudri (supra), a Constitution Bench of this Court approved reservation based on institutional preference as set out in Pradeep Jain v. Union of. In Yatin Kuma Jasubahi (supra), a writ petition was filed challenging institutional preference in admission to postgraduate medical courses. It was the contention of the petitioners, in that case, that though institutional reservation had been upheld by this Court in Pradeep Jain (supra) and Saurabh Chaudri (supra), it would not be permissible because of the introduction of an All India examination in the form of NEET. Rejecting this argument, the three-Judge Bench of this Court held that postgraduate medical admissions through institutional preference are only made to candidates based on the rank received in the NEET examination. This Court in Saurabh Chaudri (supra) and Pradeep Jain (supra) held that institutional preference in post-graduate medical admissions is permissible and constitutional. However, this Court cannot issue a mandamus directing the respondent to conduct admissions through institutional preference. The decision of whether or not to provide institutional preference solely lies with the respondent-authority since it falls within the realm of policy.10. On the above premises, there is a clear distinction in law between junior resident doctors and regularly recruited ESIC doctors. The in-service quota is, therefore, justifiably made available to the latter category. The petitioners cannot claim parity with regularly recruited insurance medical officers in seeking the benefit of the in-service quota.
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Mohmedalli & Others Vs. Union of India & Another | the executive, it cannot be said that there was excessive delegation of powers by the legislature. On the other hand, if a review of all those facts and circumstances and the provisions of the statute, including the preamble, leaves the Court guessing as to the principles and standards, then the delegate has been entrusted not with the mere function of applying the law to individual cases, but with a substantial portion of legislative power itself. Applying those principles which are now well-established by quite a number of decisions of this Court, can it be said in the instant case that the legislature had not indicated clearly the principles underlying the legislation and the standards to be applied ? In our opinion, the answer must be an emphatic "No."It was next contended that the Act was intended by Parliament to apply to employees who were mere wage-earners and not to salaried servants, and that in the instant case, the employees of the petitioners were not mere wage-earners. It is a little difficult to appreciate the distinction sought to be made. Both "salary" and "wages" are emoluments paid to an employee by way of recompense for his labour. Neither of the two terms is a "term of art." The Act has not defined wages; it has only defined "basic wages" as"all emoluments which are earned by an employee while on duty or on leave with wages in accordance with the terms of the contract of employment and which are paid or payable in cash to him, but does not include . . . " [S. 2 (b).] [Exclusions are not relevant for our present purposes and, therefore, need not be read.] "Salary, " on the other hand, is remuneration paid to an employee whose period of engagement is more or less permanent in character, for other than manual or relatively unskilled labour. The distinction between skilled and unskilled labour itself is not very definite and it cannot be argued, nor has it been argued, that the remuneration for skilled labour is not "wages." The Act itself had not made any distinction between "wages" and "salary." Both may be paid weekly, fortightly or monthly, though remuneration for the days work is not ordinarily termed "salary." Simply because wages for the month run into hundreds, as they very often do now, would not mean that the employee is not earning wages, properly so called. A clerk in an office may earn much less than the monthly wages of a skilled labourer. Ordinarily he is said to earn his salary. But, in principle, there is no difference between the two. It is, therefore, not established that the Act was not intended to apply to salaried employees, if by salary is meant fortnightly or monthly wages running into hundreds per monthly. It is manifest that there is no force in this contention.It now remains to consider the third and the last contention raised on behalf of the petitioners, namely, that the Act suffers from the vice of discrimination, and therefore, infringes Art. 14 of the Constitution. It is even more difficult to understand this contention, because, as already pointed out, the Act applies to all establishments, except those recited in S. 16, which before it is amendment by Act XLVI of 1960 exempted establishments belonging to Government or to a local authority. But whatever vice there may have been in that provisions has been removed by amending the section, which stands after the amendment as under :"16. (1) This Act shall not apply - (a) to any establishment registered under the Co-operative Societies Act, 1912, or under any other law for the time being in force in any State relating to co-operative societies employing less than fifty persons and working without the aid of power; or (b) to any other establishment employing fifty or more persons or twenty or more but less than fifty persons until the expiry of three years in the case of the former and five years in the case of the latter, from the date on which the establishment is or had been set up. Explanation. - For the removal of doubt it is hereby declared that an establishment shall not be deemed to be newly set up merely by reason of a change in its location." 13. Clause (a) of S. 16, as it now stands, has exempted establishments registered under the Co-operative Societies Act, because it is well-known that it is the settled policy of the Government to foster co-operative societies with a view to their development and growth in the interest of the community. It is not necessary to cite instances where this Court has held that co-operative societies stand on a special footing which distinguishes them from other establishments or corporations. Clause (b) has reference to establishments which have been in existence for less than three years or five years, the case may be. That is an understandable classification with a view to save newly started establishments from the additional burden of making contribution to provident fund in respect of its employees. It is clear that the exemption is a short-lived one because with the efflux of three of five years period, they will automatically come under the scheme framed under the Act. The operation of S. 17 has already been discussed, and it has already been indicated that an establishment coming under the exemptions granted or to be granted under S. 17 does not mean that the establishment bears less burden of its share of contribution to the fund. It has not been contended before us that the petitioners establishment does not come within the general rule laid down in S.1(3) of the Act or within the scope of the scheme framed under S. 5. It is equally clear that all hotels and restaurants come within the scope of the notification impugned in this case. Hence, there is absolutely no reason for complaint that the petitioners establishment of that class has been chosen for hostile discrimination. 14. | 0[ds]It would appear from the terms of the relevant portion of S. 17 that the exemption to be granted byte appropriate Government is not in the nature of completely absolving the establishments from all liability to provide the facilities contemplated by the Act. The exemptions are to be granted by the appropriate Government only if in its opinion the exempted establishment has provisions made for provident fund, in terms at least equal to, if not more favourable to its employees. In other words, the exemption is with a view to avoiding duplication and permitting the employees concerned the benefit of the pre-existing scheme, which presumably has been working satisfactorily, so that the exemption is not meant to deprive the employees concerned of the benefit of a provident fund but to ensure to them the continuance of the benefit which at lest is not in terms less favourable to them. As the whole scheme of provident fund is intended for the benefit of employees, S. 17 only saves pre-existing schemes of provident fund pertaining to particular establishments. Hence, the provisions of Sub-sec. (3) of S. 1, read along with those of S. 17, quoted above, cannot be said to have conferred uncontrolled and uncanalized power on the appropriate GovernmentClause (a) of S. 16, as it now stands, has exempted establishments registered under the Co-operative Societies Act, because it is well-known that it is the settled policy of the Government to foster co-operative societies with a view to their development and growth in the interest of the community. It is not necessary to cite instances where this Court has held that co-operative societies stand on a special footing which distinguishes them from other establishments or corporations. Clause (b) has reference to establishments which have been in existence for less than three years or five years, the case may be. That is an understandable classification with a view to save newly started establishments from the additional burden of making contribution to provident fund in respect of its employees. It is clear that the exemption is a short-lived one because with the efflux of three of five years period, they will automatically come under the scheme framed under the Act. The operation of S. 17 has already been discussed, and it has already been indicated that an establishment coming under the exemptions granted or to be granted under S. 17 does not mean that the establishment bears less burden of its share of contribution to the fund. It has not been contended before us that the petitioners establishment does not come within the general rule laid down in S.1(3) of the Act or within the scope of the scheme framed under S. 5. It is equally clear that all hotels and restaurants come within the scope of the notification impugned in this case. Hence, there is absolutely no reason for complaint that the petitioners establishment of that class has been chosen for hostile discrimination. | 0 | 4,673 | 535 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
the executive, it cannot be said that there was excessive delegation of powers by the legislature. On the other hand, if a review of all those facts and circumstances and the provisions of the statute, including the preamble, leaves the Court guessing as to the principles and standards, then the delegate has been entrusted not with the mere function of applying the law to individual cases, but with a substantial portion of legislative power itself. Applying those principles which are now well-established by quite a number of decisions of this Court, can it be said in the instant case that the legislature had not indicated clearly the principles underlying the legislation and the standards to be applied ? In our opinion, the answer must be an emphatic "No."It was next contended that the Act was intended by Parliament to apply to employees who were mere wage-earners and not to salaried servants, and that in the instant case, the employees of the petitioners were not mere wage-earners. It is a little difficult to appreciate the distinction sought to be made. Both "salary" and "wages" are emoluments paid to an employee by way of recompense for his labour. Neither of the two terms is a "term of art." The Act has not defined wages; it has only defined "basic wages" as"all emoluments which are earned by an employee while on duty or on leave with wages in accordance with the terms of the contract of employment and which are paid or payable in cash to him, but does not include . . . " [S. 2 (b).] [Exclusions are not relevant for our present purposes and, therefore, need not be read.] "Salary, " on the other hand, is remuneration paid to an employee whose period of engagement is more or less permanent in character, for other than manual or relatively unskilled labour. The distinction between skilled and unskilled labour itself is not very definite and it cannot be argued, nor has it been argued, that the remuneration for skilled labour is not "wages." The Act itself had not made any distinction between "wages" and "salary." Both may be paid weekly, fortightly or monthly, though remuneration for the days work is not ordinarily termed "salary." Simply because wages for the month run into hundreds, as they very often do now, would not mean that the employee is not earning wages, properly so called. A clerk in an office may earn much less than the monthly wages of a skilled labourer. Ordinarily he is said to earn his salary. But, in principle, there is no difference between the two. It is, therefore, not established that the Act was not intended to apply to salaried employees, if by salary is meant fortnightly or monthly wages running into hundreds per monthly. It is manifest that there is no force in this contention.It now remains to consider the third and the last contention raised on behalf of the petitioners, namely, that the Act suffers from the vice of discrimination, and therefore, infringes Art. 14 of the Constitution. It is even more difficult to understand this contention, because, as already pointed out, the Act applies to all establishments, except those recited in S. 16, which before it is amendment by Act XLVI of 1960 exempted establishments belonging to Government or to a local authority. But whatever vice there may have been in that provisions has been removed by amending the section, which stands after the amendment as under :"16. (1) This Act shall not apply - (a) to any establishment registered under the Co-operative Societies Act, 1912, or under any other law for the time being in force in any State relating to co-operative societies employing less than fifty persons and working without the aid of power; or (b) to any other establishment employing fifty or more persons or twenty or more but less than fifty persons until the expiry of three years in the case of the former and five years in the case of the latter, from the date on which the establishment is or had been set up. Explanation. - For the removal of doubt it is hereby declared that an establishment shall not be deemed to be newly set up merely by reason of a change in its location." 13. Clause (a) of S. 16, as it now stands, has exempted establishments registered under the Co-operative Societies Act, because it is well-known that it is the settled policy of the Government to foster co-operative societies with a view to their development and growth in the interest of the community. It is not necessary to cite instances where this Court has held that co-operative societies stand on a special footing which distinguishes them from other establishments or corporations. Clause (b) has reference to establishments which have been in existence for less than three years or five years, the case may be. That is an understandable classification with a view to save newly started establishments from the additional burden of making contribution to provident fund in respect of its employees. It is clear that the exemption is a short-lived one because with the efflux of three of five years period, they will automatically come under the scheme framed under the Act. The operation of S. 17 has already been discussed, and it has already been indicated that an establishment coming under the exemptions granted or to be granted under S. 17 does not mean that the establishment bears less burden of its share of contribution to the fund. It has not been contended before us that the petitioners establishment does not come within the general rule laid down in S.1(3) of the Act or within the scope of the scheme framed under S. 5. It is equally clear that all hotels and restaurants come within the scope of the notification impugned in this case. Hence, there is absolutely no reason for complaint that the petitioners establishment of that class has been chosen for hostile discrimination. 14.
### Response:
0
### Explanation:
It would appear from the terms of the relevant portion of S. 17 that the exemption to be granted byte appropriate Government is not in the nature of completely absolving the establishments from all liability to provide the facilities contemplated by the Act. The exemptions are to be granted by the appropriate Government only if in its opinion the exempted establishment has provisions made for provident fund, in terms at least equal to, if not more favourable to its employees. In other words, the exemption is with a view to avoiding duplication and permitting the employees concerned the benefit of the pre-existing scheme, which presumably has been working satisfactorily, so that the exemption is not meant to deprive the employees concerned of the benefit of a provident fund but to ensure to them the continuance of the benefit which at lest is not in terms less favourable to them. As the whole scheme of provident fund is intended for the benefit of employees, S. 17 only saves pre-existing schemes of provident fund pertaining to particular establishments. Hence, the provisions of Sub-sec. (3) of S. 1, read along with those of S. 17, quoted above, cannot be said to have conferred uncontrolled and uncanalized power on the appropriate GovernmentClause (a) of S. 16, as it now stands, has exempted establishments registered under the Co-operative Societies Act, because it is well-known that it is the settled policy of the Government to foster co-operative societies with a view to their development and growth in the interest of the community. It is not necessary to cite instances where this Court has held that co-operative societies stand on a special footing which distinguishes them from other establishments or corporations. Clause (b) has reference to establishments which have been in existence for less than three years or five years, the case may be. That is an understandable classification with a view to save newly started establishments from the additional burden of making contribution to provident fund in respect of its employees. It is clear that the exemption is a short-lived one because with the efflux of three of five years period, they will automatically come under the scheme framed under the Act. The operation of S. 17 has already been discussed, and it has already been indicated that an establishment coming under the exemptions granted or to be granted under S. 17 does not mean that the establishment bears less burden of its share of contribution to the fund. It has not been contended before us that the petitioners establishment does not come within the general rule laid down in S.1(3) of the Act or within the scope of the scheme framed under S. 5. It is equally clear that all hotels and restaurants come within the scope of the notification impugned in this case. Hence, there is absolutely no reason for complaint that the petitioners establishment of that class has been chosen for hostile discrimination.
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Tika Ram Vs. Mundikota Shikshan Prasarak Mandal and Others | VENKATARAMIAH, J.1. Special Leave granted.2. In the year 1975 the appellant was working as the Head Master of a High School which was being run by the Mundikota Shikshan Prasarak Mandal, respondent No. 1, which was a private body. On account of certain earlier events which need not be set out here the management instituted a disciplinary enquiry against the appellant and on July 7, 1975, the appellant was informed by the management that it had imposed on the appellant the punishment of reversion to the post of Assistant Teacher which according to the management was the substantive post held by him. Aggrieved by the above order of reversion, the appellant filed an appeal before the Deputy Director of Education, Nagpur Division, Nagpur contending that the enquiry had been vitiated on account of violation of principles of natural justice and that he had never held the post of an Assistant Teacher to which he had been reverted. After hearing both the parties the Deputy Director of Education passed an order dated October 3, 1975 setting aside the decision of the management and remanding the case to the management for fresh decision on the ground that the enquiry had been vitiated on account of violation of principles of natural justice. Instead of filing an appeal against that order, the management filed a review petition before the Deputy Director himself on October 17, 1975. That wa s rejected by the Deputy Director by his order dated November 11, 1975 on the ground that no such review petition could be filed before him. Against this order the management filed an appeal before the Director of Education and that was dismissed on May 12, 1976 affirming the order of remand passed by the Deputy Directory. The management again filed a petition before the Director of Education to reconsider the case, This petition for review was allowed by the Director on November 26, 1976 and the order passed by the Deputy Director on October 3, 1975 remanding the case to the management for a fresh decision was set aside. Aggrieved by the said order dated November 26, 1976, the appellant filed a writ petition before the High Cou rt of Bombay on the principal ground that the Director had no jurisdiction to review his earlier order of May 12, 1976 by which he had dismissed the appeal against the order of the Deputy Director. The High Court dismissed the above wri t petition holding that the appellant could not file a writ petition under Article 226 of the Constitution against the order passed by the Director on the ground that the teachers working in private schools could not enforce their right under clause 77 and connected clauses of the School Code which were not statutory rules. This appeal is filed against the above order of the High Court under Article 136 of the Constitution.It is not disputed that the Deputy Director and the Director are officers of Government and the nature of functions discharged by them while hearing appeals against orders made in disciplinary proceedings is quasi-judicial in character. It is also not disputed that neither of them has bee n authorised by the School Code to review their own decisions and that in the absence of such power, an order made on review in such quasi-judicial proceeding would be ineffective. In the writ petition the appellant was not seeking any relief directly against the management on the basis of the clauses in the School Code. If the management does not obey the order passed by the Deputy Director or the Director, it is open to the State Government to take such action under the School Cod e as may be permissible. In such an event, the recognition accorded to the school may be withdrawn or the grant-in-aid may be stopped. In the instant case the appellant is seeking a relief not against a private body but against an officer of Government who is always amenable to the jurisdiction of the Court. The appellant has merely sought the quashing of the impugned order dated November 26, 1976 passed by the Director on review setting aside the order of the Deputy Direct or. What consequences follow from the quashing of the above said order in so far as the management is concerned is an entirely different issue. In the circumstances, the High Court was wrong in holding that a petition under Article 226 of the Constitution did not lie against the impugned order passed by the Director. We are aware of some of the decisions in which it is observed that no teacher could enforce a right under the School Code which is non-statutory in character against the management. But since this petition is principally directed against the order passed in a quasi-judicial proceeding by the Director, though in a case arising under the School Code and since the Director had assumed a jurisdiction to review his own orders no t conferred on him, we hold that the appellant was entitled to maintain the petition under Article 226 of the Constitution.On merits it is not disputed that neither the Deputy Director nor the Director of Education had the power to review the orders passed by them earlier. The Director had affirmed the orders of the Deputy Director by his order dated May 12, 1976. The order passed by the Deputy Director on October 3, 1975 remanding the case to the management for holding a fresh enquiry thus became final. The Director had no power to review his earlier order. The High Court should have in the circumstances set aside the order dated November 26, 1976 passed by the Director on review setting aside the order passed by the Deputy Director. We | 1[ds]In the instant case the appellant is seeking a relief not against a private body but against an officer of Government who is always amenable to the jurisdiction of the Court. The appellant has merely sought the quashing of the impugned order dated November 26, 1976 passed by the Director on review setting aside the order of the Deputy Direct or. What consequences follow from the quashing of the above said order in so far as the management is concerned is an entirely different issue. In the circumstances, the High Court was wrong in holding that a petition under Article 226 of the Constitution did not lie against the impugned order passed by the Director.We are aware of some of the decisions in which it is observed that no teacher could enforce a right under the School Code which is non-statutory in character against the management. But since this petition is principally directed against the order passed in a quasi-judicial proceeding by the Director, though in a case arising under the School Code and since the Director had assumed a jurisdiction to review his own orders no t conferred on him, we hold that the appellant was entitled to maintain the petition under Article 226 of the Constitution.On merits it is not disputed that neither the Deputy Director nor the Director of Education had the power to review the orders passed by them earlier. The Director had affirmed the orders of the Deputy Director by his order dated May 12, 1976. The order passed by the Deputy Director on October 3, 1975 remanding the case to the management for holding a fresh enquiry thus became final. The Director had no power to review his earlier order. The High Court should have in the circumstances set aside the order dated November 26, 1976 passed by the Director on review setting aside the order passed by the Deputy Director. We, therefore, set aside the order dated November 26, 1976 passed by the Director of Education and restore the order dated October 3, 1975 passed by the Deputy Director of Education remanding the case to the management for holding a fresh enquiry. The management may now proceed to hold the enquiry in accordance with law, if it considers it necessary. The appellant is entitled to all consequential benefits flowing from this order. | 1 | 1,012 | 417 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
VENKATARAMIAH, J.1. Special Leave granted.2. In the year 1975 the appellant was working as the Head Master of a High School which was being run by the Mundikota Shikshan Prasarak Mandal, respondent No. 1, which was a private body. On account of certain earlier events which need not be set out here the management instituted a disciplinary enquiry against the appellant and on July 7, 1975, the appellant was informed by the management that it had imposed on the appellant the punishment of reversion to the post of Assistant Teacher which according to the management was the substantive post held by him. Aggrieved by the above order of reversion, the appellant filed an appeal before the Deputy Director of Education, Nagpur Division, Nagpur contending that the enquiry had been vitiated on account of violation of principles of natural justice and that he had never held the post of an Assistant Teacher to which he had been reverted. After hearing both the parties the Deputy Director of Education passed an order dated October 3, 1975 setting aside the decision of the management and remanding the case to the management for fresh decision on the ground that the enquiry had been vitiated on account of violation of principles of natural justice. Instead of filing an appeal against that order, the management filed a review petition before the Deputy Director himself on October 17, 1975. That wa s rejected by the Deputy Director by his order dated November 11, 1975 on the ground that no such review petition could be filed before him. Against this order the management filed an appeal before the Director of Education and that was dismissed on May 12, 1976 affirming the order of remand passed by the Deputy Directory. The management again filed a petition before the Director of Education to reconsider the case, This petition for review was allowed by the Director on November 26, 1976 and the order passed by the Deputy Director on October 3, 1975 remanding the case to the management for a fresh decision was set aside. Aggrieved by the said order dated November 26, 1976, the appellant filed a writ petition before the High Cou rt of Bombay on the principal ground that the Director had no jurisdiction to review his earlier order of May 12, 1976 by which he had dismissed the appeal against the order of the Deputy Director. The High Court dismissed the above wri t petition holding that the appellant could not file a writ petition under Article 226 of the Constitution against the order passed by the Director on the ground that the teachers working in private schools could not enforce their right under clause 77 and connected clauses of the School Code which were not statutory rules. This appeal is filed against the above order of the High Court under Article 136 of the Constitution.It is not disputed that the Deputy Director and the Director are officers of Government and the nature of functions discharged by them while hearing appeals against orders made in disciplinary proceedings is quasi-judicial in character. It is also not disputed that neither of them has bee n authorised by the School Code to review their own decisions and that in the absence of such power, an order made on review in such quasi-judicial proceeding would be ineffective. In the writ petition the appellant was not seeking any relief directly against the management on the basis of the clauses in the School Code. If the management does not obey the order passed by the Deputy Director or the Director, it is open to the State Government to take such action under the School Cod e as may be permissible. In such an event, the recognition accorded to the school may be withdrawn or the grant-in-aid may be stopped. In the instant case the appellant is seeking a relief not against a private body but against an officer of Government who is always amenable to the jurisdiction of the Court. The appellant has merely sought the quashing of the impugned order dated November 26, 1976 passed by the Director on review setting aside the order of the Deputy Direct or. What consequences follow from the quashing of the above said order in so far as the management is concerned is an entirely different issue. In the circumstances, the High Court was wrong in holding that a petition under Article 226 of the Constitution did not lie against the impugned order passed by the Director. We are aware of some of the decisions in which it is observed that no teacher could enforce a right under the School Code which is non-statutory in character against the management. But since this petition is principally directed against the order passed in a quasi-judicial proceeding by the Director, though in a case arising under the School Code and since the Director had assumed a jurisdiction to review his own orders no t conferred on him, we hold that the appellant was entitled to maintain the petition under Article 226 of the Constitution.On merits it is not disputed that neither the Deputy Director nor the Director of Education had the power to review the orders passed by them earlier. The Director had affirmed the orders of the Deputy Director by his order dated May 12, 1976. The order passed by the Deputy Director on October 3, 1975 remanding the case to the management for holding a fresh enquiry thus became final. The Director had no power to review his earlier order. The High Court should have in the circumstances set aside the order dated November 26, 1976 passed by the Director on review setting aside the order passed by the Deputy Director. We
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In the instant case the appellant is seeking a relief not against a private body but against an officer of Government who is always amenable to the jurisdiction of the Court. The appellant has merely sought the quashing of the impugned order dated November 26, 1976 passed by the Director on review setting aside the order of the Deputy Direct or. What consequences follow from the quashing of the above said order in so far as the management is concerned is an entirely different issue. In the circumstances, the High Court was wrong in holding that a petition under Article 226 of the Constitution did not lie against the impugned order passed by the Director.We are aware of some of the decisions in which it is observed that no teacher could enforce a right under the School Code which is non-statutory in character against the management. But since this petition is principally directed against the order passed in a quasi-judicial proceeding by the Director, though in a case arising under the School Code and since the Director had assumed a jurisdiction to review his own orders no t conferred on him, we hold that the appellant was entitled to maintain the petition under Article 226 of the Constitution.On merits it is not disputed that neither the Deputy Director nor the Director of Education had the power to review the orders passed by them earlier. The Director had affirmed the orders of the Deputy Director by his order dated May 12, 1976. The order passed by the Deputy Director on October 3, 1975 remanding the case to the management for holding a fresh enquiry thus became final. The Director had no power to review his earlier order. The High Court should have in the circumstances set aside the order dated November 26, 1976 passed by the Director on review setting aside the order passed by the Deputy Director. We, therefore, set aside the order dated November 26, 1976 passed by the Director of Education and restore the order dated October 3, 1975 passed by the Deputy Director of Education remanding the case to the management for holding a fresh enquiry. The management may now proceed to hold the enquiry in accordance with law, if it considers it necessary. The appellant is entitled to all consequential benefits flowing from this order.
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M. Ramnarain Private Ltd. And Anr Vs. State Trading Corporation Of India Ltd | clearly manifested its intention of preferring an appeal against the decree by causing the necessary requisition for the certified copy of the decree and judgment to be filed. The stakes involved in the suit of the defendant appellant were very high and the judgment and the decree in the suit had gone against the defendant-appellant. In this background the filing of the earlier appeal on the mistaken advice of the lawyer cannot in our opinion, legitimately lead to the conclusion that the defendant appellant had abandoned or relinquished his right to prefer the present appeal and t hat the defendant- appellant had become disentitled to file the same. The further fact that the earlier appeal No. 36 of 1981 was withdrawn the very next day after the same had been filed at the stage of admission and the present appeal ca me to be filed just a week after the withdrawal of the earlier appeal clearly establishes that the defendant-appellant had never intended to relinquish or abandon its right to file an appeal against the decree. The earlier appeal No. 36 of 1981 which was filed on 20.1.1981 and was withdrawn on 21.1.1981 at the time of admission, could not possibly have caused any prejudice to the plaintiff-respondent. The promptitude with which the present appeal was filed just after a week on 29.1.1981 indicates that the defendant appellant had never intended to give up their right of appeal against the decree and they have acted with all promptness and earnestness on being properly advised as to the legal position and as to their legal rights. The filing of the earlier appeal No. 36 of 1981 in the facts and circumstances of this case does not amount to any representation or promise on the part of the defendant appellant to accept the decree on merits and not to prefer an appeal from the same. T here is also no question of election on the part of the defendant-appellant in preferring an appeal against the order regarding the installment and not against the decree on merits. It is not a case where a party is called upon to elect one of two alternative remedies, when by a election of one of two alternative remedies he loses his right to pursue the other. In the instant case, the defendant-appellant has a statutory right to prefer an appeal against the decree and any question of election on his part does not aries.The withdrawal of the earlier appeal No. 36 of 1981 without obtaining the leave of Court does not in the facts and circumstances of this case, affect in any way the maintainability of the present appeal. We have already held that the earlier appeal No. 36 of 1981 was an incompetent appeal and the withdrawal of the incompetent appeal in the instant case did not have prejudice, in any way, the right of the defendant-appellant to file a proper appeal against the decree. The withdrawal of the earlier appeal at the stage of admission on the very next day after the same had been filed and the filing of the present appeal just after a week thereafter, on the other hand, have a bearing on the conduct of the defendant-appellant and they manifestly make it clear that the defendant-appellant had always intended to file an appeal against the decree and it never intended to give up his right of appeal against the decree.16. In the instant case we are not satisfied that the defendant-appellant had obtained any advantage under the decree to preclude him from filing an appeal against the same. Even before any installment had fallen due under the decree, the defendant appellant had filed the earlier appeal No. 36 of 1981 against the provisions regarding installments. It is to be noted that instead of taking or getting any advantage under the decree in the matter of granting installments, the defendant-appellant had cha llenged the same long before the question of deriving any benefit thereunder had come. As we have earlier noticed, the defendant- appellant had withdrawn the earlier appeal the very next day and had filed the present appeal within eight days thereafter. In an appropriate case any party which derives any advantage under a decree or order may, depending on the facts and circumstances of the case, disentitle himself to challenge the same and will be estopped from filing an appeal against the same,It is also to be borne in mind that no execution of decree passed in a suit on the original side is normally permitted unless a certified copy of the decree is on the record in the execution proceeding. A certified copy of the decree is not available so long as the decree is not drawn up and filed. The present appeal had been filed long before the decree had been drawn up and, therefore, there could be no question of execution of any decree at the time when the pre sent appeal was filed. The question of the defendant appellant having obtained an advantage under the decree does not therefore, really arise. In the case of Bhau Ram v. Baijnath, (1) this Court observed at p. 362:"It seems to us, how ever, that in the absence of some statutory provision or of a well-recognised principle of equity, no one can be deprived of his legal rights including a statutory right of appeal."17. We have earlier held that no statutory provision deprives the defendant-appellant of his right to file the present appeal. We have carefully considered the facts and circumstances of this case and the facts of this case also do not attract any well-recognised principle of equity t o deprive the appellant of his very valuable statutory right of appeal. The various passages from Halsbury relied on by Mr. Nariman which we have earlier quoted lend support to the view that the defendant-appellant in the instant case by reason of its conduct or otherwise is not estopped or has not become disentitled to file the appeal.18. | 1[ds]Though by virtue of the provisions of the Original Side Rules of the Bombay High Court the earlier appeal could be permitted to be filed without a certified copy of the decree or order, the appeal would not be valid and competent unless the further requirement of filing the certified copy had been complied with. At the time when the earlier appeal no. 36 of 1981 had been withdrawn, the certified copy of the decree had not been filed. The said appeal without the certified copy of the decree remained an incompetent appeal. The withdrawal of an incompetent appeal which will indeed be no appeal in the eye of law cannot in any way prejudice the right of any appellant to file a proper appeal, if the right of appeal is not otherwise lost by lapse of time or for any other valid reason. We are, therefore, of the opinion that the provisions contained in order 20, rule 11 of the Code do not in the facts and circumstances of the present case deprive the appellant of his right to file an appeal against the decree.The provisions of O. 2, rule 2 of theCode of Civil Proceduredo not stand in the way of the appellant in the matter of filing the subsequent Appeal no. 44 of 1981. Order 2, rule 2 deals with suits and provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Order 2, rule 2(2) further provides that where the plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. The requirement of Order 2, rule 2(3) is that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. The explanation provides that for the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. It is clear from the provisions of Order 2, rule 2 that this rule is applicable only to suits and cannot in terms apply to appeals. Even if an appeal be considered to be a continuation of a suit for certain purposes, the provision of Order 2, rule 2 cannot in terms be made applicable to an appeal in view of the scheme of the said rule and the language used therein. Order 2, rule 2, contemplates that at the initial stage of the institution of the suit, the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, has to be made and further deals with the consequences of non- compliance with the requirements of the said rule. It is indeed doubtful whether the principles underlying this rule can be said to be applicable to an appeal. Even if the principles underlying Order 2, rule 2 can be considered to apply to an appeal, the maintainability of the instant case cannot be held t o be affected in any way as the cause of action in respect of the present appeal is entirely different from the cause of action on the basis of which the earlier appeal had been filed.Order 23, rule 1 of theCode of Civil Proceduredoe s not also stand in the way of the maintainability of the instant appeal. The withdrawal of the earlier appeal which was not competent and was no appeal in the eye of the law and which was only concerned with regard to the provision of installment cannot in any way effect the validity of the present appeal. Apart from the incompetency of the earlier appeal No. 36 of 1981, the subject matter of the said appeal was entirely different from the subject-matter of the presentmay further be noted that the provisions of theCode of Civil Procedurecontained in Order 20, rule 11 order 2, rule 2 and Order 23 rule 1 do not in terms deal with any question in relation to the right of appeal or the extinguishment thereof. The aforesaid provisions do not by themselves confer any right of appeal on a party or deprive any party of the right of appeal which a party may enjoy. These are not the statutory provisions which either confer a right of appeal on a party or deprive a party of any such right. We have earlier considered the effect of there provisions and we are of the opinion that these provisions do not in the facts and circumstances of this case have the effect of depriving the defendant-appellant of his right to file the presentthis background the filing of the earlier appeal on the mistaken advice of the lawyer cannot in our opinion, legitimately lead to the conclusion that the defendant appellant had abandoned or relinquished his right to prefer the present appeal and t hat the defendant- appellant had become disentitled to file the same. The further fact that the earlier appeal No. 36 of 1981 was withdrawn the very next day after the same had been filed at the stage of admission and the present appeal ca me to be filed just a week after the withdrawal of the earlier appeal clearly establishes that the defendant-appellant had never intended to relinquish or abandon its right to file an appeal against the decree. The earlier appeal No. 36 of 1981 which was filed on 20.1.1981 and was withdrawn on 21.1.1981 at the time of admission, could not possibly have caused any prejudice to the plaintiff-respondent. The promptitude with which the present appeal was filed just after a week on 29.1.1981 indicates that the defendant appellant had never intended to give up their right of appeal against the decree and they have acted with all promptness and earnestness on being properly advised as to the legal position and as to their legal rights. The filing of the earlier appeal No. 36 of 1981 in the facts and circumstances of this case does not amount to any representation or promise on the part of the defendant appellant to accept the decree on merits and not to prefer an appeal from the same. T here is also no question of election on the part of the defendant-appellant in preferring an appeal against the order regarding the installment and not against the decree on merits. It is not a case where a party is called upon to elect one of two alternative remedies, when by a election of one of two alternative remedies he loses his right to pursue the other. In the instant case, the defendant-appellant has a statutory right to prefer an appeal against the decree and any question of election on his part does not aries.The withdrawal of the earlier appeal No. 36 of 1981 without obtaining the leave of Court does not in the facts and circumstances of this case, affect in any way the maintainability of the present appeal. We have already held that the earlier appeal No. 36 of 1981 was an incompetent appeal and the withdrawal of the incompetent appeal in the instant case did not have prejudice, in any way, the right of the defendant-appellant to file a proper appeal against the decree. The withdrawal of the earlier appeal at the stage of admission on the very next day after the same had been filed and the filing of the present appeal just after a week thereafter, on the other hand, have a bearing on the conduct of the defendant-appellant and they manifestly make it clear that the defendant-appellant had always intended to file an appeal against the decree and it never intended to give up his right of appeal against thethe instant case we are not satisfied that the defendant-appellant had obtained any advantage under the decree to preclude him from filing an appeal against the same. Even before any installment had fallen due under the decree, the defendant appellant had filed the earlier appeal No. 36 of 1981 against the provisions regarding installments. It is to be noted that instead of taking or getting any advantage under the decree in the matter of granting installments, the defendant-appellant had cha llenged the same long before the question of deriving any benefit thereunder had come. As we have earlier noticed, the defendant- appellant had withdrawn the earlier appeal the very next day and had filed the present appeal within eight days thereafter. In an appropriate case any party which derives any advantage under a decree or order may, depending on the facts and circumstances of the case, disentitle himself to challenge the same and will be estopped from filing an appeal against the same,It is also to be borne in mind that no execution of decree passed in a suit on the original side is normally permitted unless a certified copy of the decree is on the record in the execution proceeding. A certified copy of the decree is not available so long as the decree is not drawn up and filed. The present appeal had been filed long before the decree had been drawn up and, therefore, there could be no question of execution of any decree at the time when the pre sent appeal was filed. The question of the defendant appellant having obtained an advantage under the decree does not therefore, reallyhave earlier held that no statutory provision deprives the defendant-appellant of his right to file the present appeal. We have carefully considered the facts and circumstances of this case and the facts of this case also do not attract any well-recognised principle of equity t o deprive the appellant of his very valuable statutory right of appeal. The various passages from Halsbury relied on by Mr. Nariman which we have earlier quoted lend support to the view that the defendant-appellant in the instant case by reason of its conduct or otherwise is not estopped or has not become disentitled to file the appeal. | 1 | 13,405 | 1,850 | ### Instruction:
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clearly manifested its intention of preferring an appeal against the decree by causing the necessary requisition for the certified copy of the decree and judgment to be filed. The stakes involved in the suit of the defendant appellant were very high and the judgment and the decree in the suit had gone against the defendant-appellant. In this background the filing of the earlier appeal on the mistaken advice of the lawyer cannot in our opinion, legitimately lead to the conclusion that the defendant appellant had abandoned or relinquished his right to prefer the present appeal and t hat the defendant- appellant had become disentitled to file the same. The further fact that the earlier appeal No. 36 of 1981 was withdrawn the very next day after the same had been filed at the stage of admission and the present appeal ca me to be filed just a week after the withdrawal of the earlier appeal clearly establishes that the defendant-appellant had never intended to relinquish or abandon its right to file an appeal against the decree. The earlier appeal No. 36 of 1981 which was filed on 20.1.1981 and was withdrawn on 21.1.1981 at the time of admission, could not possibly have caused any prejudice to the plaintiff-respondent. The promptitude with which the present appeal was filed just after a week on 29.1.1981 indicates that the defendant appellant had never intended to give up their right of appeal against the decree and they have acted with all promptness and earnestness on being properly advised as to the legal position and as to their legal rights. The filing of the earlier appeal No. 36 of 1981 in the facts and circumstances of this case does not amount to any representation or promise on the part of the defendant appellant to accept the decree on merits and not to prefer an appeal from the same. T here is also no question of election on the part of the defendant-appellant in preferring an appeal against the order regarding the installment and not against the decree on merits. It is not a case where a party is called upon to elect one of two alternative remedies, when by a election of one of two alternative remedies he loses his right to pursue the other. In the instant case, the defendant-appellant has a statutory right to prefer an appeal against the decree and any question of election on his part does not aries.The withdrawal of the earlier appeal No. 36 of 1981 without obtaining the leave of Court does not in the facts and circumstances of this case, affect in any way the maintainability of the present appeal. We have already held that the earlier appeal No. 36 of 1981 was an incompetent appeal and the withdrawal of the incompetent appeal in the instant case did not have prejudice, in any way, the right of the defendant-appellant to file a proper appeal against the decree. The withdrawal of the earlier appeal at the stage of admission on the very next day after the same had been filed and the filing of the present appeal just after a week thereafter, on the other hand, have a bearing on the conduct of the defendant-appellant and they manifestly make it clear that the defendant-appellant had always intended to file an appeal against the decree and it never intended to give up his right of appeal against the decree.16. In the instant case we are not satisfied that the defendant-appellant had obtained any advantage under the decree to preclude him from filing an appeal against the same. Even before any installment had fallen due under the decree, the defendant appellant had filed the earlier appeal No. 36 of 1981 against the provisions regarding installments. It is to be noted that instead of taking or getting any advantage under the decree in the matter of granting installments, the defendant-appellant had cha llenged the same long before the question of deriving any benefit thereunder had come. As we have earlier noticed, the defendant- appellant had withdrawn the earlier appeal the very next day and had filed the present appeal within eight days thereafter. In an appropriate case any party which derives any advantage under a decree or order may, depending on the facts and circumstances of the case, disentitle himself to challenge the same and will be estopped from filing an appeal against the same,It is also to be borne in mind that no execution of decree passed in a suit on the original side is normally permitted unless a certified copy of the decree is on the record in the execution proceeding. A certified copy of the decree is not available so long as the decree is not drawn up and filed. The present appeal had been filed long before the decree had been drawn up and, therefore, there could be no question of execution of any decree at the time when the pre sent appeal was filed. The question of the defendant appellant having obtained an advantage under the decree does not therefore, really arise. In the case of Bhau Ram v. Baijnath, (1) this Court observed at p. 362:"It seems to us, how ever, that in the absence of some statutory provision or of a well-recognised principle of equity, no one can be deprived of his legal rights including a statutory right of appeal."17. We have earlier held that no statutory provision deprives the defendant-appellant of his right to file the present appeal. We have carefully considered the facts and circumstances of this case and the facts of this case also do not attract any well-recognised principle of equity t o deprive the appellant of his very valuable statutory right of appeal. The various passages from Halsbury relied on by Mr. Nariman which we have earlier quoted lend support to the view that the defendant-appellant in the instant case by reason of its conduct or otherwise is not estopped or has not become disentitled to file the appeal.18.
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not in terms deal with any question in relation to the right of appeal or the extinguishment thereof. The aforesaid provisions do not by themselves confer any right of appeal on a party or deprive any party of the right of appeal which a party may enjoy. These are not the statutory provisions which either confer a right of appeal on a party or deprive a party of any such right. We have earlier considered the effect of there provisions and we are of the opinion that these provisions do not in the facts and circumstances of this case have the effect of depriving the defendant-appellant of his right to file the presentthis background the filing of the earlier appeal on the mistaken advice of the lawyer cannot in our opinion, legitimately lead to the conclusion that the defendant appellant had abandoned or relinquished his right to prefer the present appeal and t hat the defendant- appellant had become disentitled to file the same. The further fact that the earlier appeal No. 36 of 1981 was withdrawn the very next day after the same had been filed at the stage of admission and the present appeal ca me to be filed just a week after the withdrawal of the earlier appeal clearly establishes that the defendant-appellant had never intended to relinquish or abandon its right to file an appeal against the decree. The earlier appeal No. 36 of 1981 which was filed on 20.1.1981 and was withdrawn on 21.1.1981 at the time of admission, could not possibly have caused any prejudice to the plaintiff-respondent. The promptitude with which the present appeal was filed just after a week on 29.1.1981 indicates that the defendant appellant had never intended to give up their right of appeal against the decree and they have acted with all promptness and earnestness on being properly advised as to the legal position and as to their legal rights. The filing of the earlier appeal No. 36 of 1981 in the facts and circumstances of this case does not amount to any representation or promise on the part of the defendant appellant to accept the decree on merits and not to prefer an appeal from the same. T here is also no question of election on the part of the defendant-appellant in preferring an appeal against the order regarding the installment and not against the decree on merits. It is not a case where a party is called upon to elect one of two alternative remedies, when by a election of one of two alternative remedies he loses his right to pursue the other. In the instant case, the defendant-appellant has a statutory right to prefer an appeal against the decree and any question of election on his part does not aries.The withdrawal of the earlier appeal No. 36 of 1981 without obtaining the leave of Court does not in the facts and circumstances of this case, affect in any way the maintainability of the present appeal. We have already held that the earlier appeal No. 36 of 1981 was an incompetent appeal and the withdrawal of the incompetent appeal in the instant case did not have prejudice, in any way, the right of the defendant-appellant to file a proper appeal against the decree. The withdrawal of the earlier appeal at the stage of admission on the very next day after the same had been filed and the filing of the present appeal just after a week thereafter, on the other hand, have a bearing on the conduct of the defendant-appellant and they manifestly make it clear that the defendant-appellant had always intended to file an appeal against the decree and it never intended to give up his right of appeal against thethe instant case we are not satisfied that the defendant-appellant had obtained any advantage under the decree to preclude him from filing an appeal against the same. Even before any installment had fallen due under the decree, the defendant appellant had filed the earlier appeal No. 36 of 1981 against the provisions regarding installments. It is to be noted that instead of taking or getting any advantage under the decree in the matter of granting installments, the defendant-appellant had cha llenged the same long before the question of deriving any benefit thereunder had come. As we have earlier noticed, the defendant- appellant had withdrawn the earlier appeal the very next day and had filed the present appeal within eight days thereafter. In an appropriate case any party which derives any advantage under a decree or order may, depending on the facts and circumstances of the case, disentitle himself to challenge the same and will be estopped from filing an appeal against the same,It is also to be borne in mind that no execution of decree passed in a suit on the original side is normally permitted unless a certified copy of the decree is on the record in the execution proceeding. A certified copy of the decree is not available so long as the decree is not drawn up and filed. The present appeal had been filed long before the decree had been drawn up and, therefore, there could be no question of execution of any decree at the time when the pre sent appeal was filed. The question of the defendant appellant having obtained an advantage under the decree does not therefore, reallyhave earlier held that no statutory provision deprives the defendant-appellant of his right to file the present appeal. We have carefully considered the facts and circumstances of this case and the facts of this case also do not attract any well-recognised principle of equity t o deprive the appellant of his very valuable statutory right of appeal. The various passages from Halsbury relied on by Mr. Nariman which we have earlier quoted lend support to the view that the defendant-appellant in the instant case by reason of its conduct or otherwise is not estopped or has not become disentitled to file the appeal.
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State Of H.P Vs. Ashwani Kumar | as he may deem fit and select the land for him in the manner specified in sub-section (1) of section 8.(3) If such person fails to furnish the declaration, the provisions of (Section 9) shall apply.(4) The excess land of such person shall be at the disposal of the State Government for utilization as surplus area under section 15 or for such other purpose as the State Government may by notification direct.Explanation:- In the case of family, the return may be furnished by any adult member of the family and in the case of the sole minor by his guardian:Provided that the Collector shall, before determining the surplus area, give to all the members of the family an opportunity of being heard.” 17. The aforesaid provision makes it clear that when any person/landowner acquires or succeeds land which is in excess of permissible area after the commencement of the Act, such land holder has to file separate return to the Collector as per Rule 16 of the Himachal Pradesh Ceiling on Land Holdings Rules, 1972. 18. The High Court passed the impugned order based on the decision of the Full Bench of the High Court in Rajkumar Rajindra Singh vs. Union of India, ILR 1976 HP 453. The Division Bench of the High Court quoted some of the paragraphs of Full Bench decision. In order to appreciate the impugned order, we shall quote paragraphs nos. 17, 18 and 19 of the impugned judgment as under:- “17. In Rajkumar Rajinder Singh’s case (supra), Full Bench of this Court in Paragraph-8 has held as under:-“………….It is the permissible area in the case of a person or a family. And it is the permissible area in respect of the landholding of such person or family. It is the landholding of such person or family alone which forms the subject-matter of Section 4, and the several sub-sections lay down the principles for the mathematical computation of the permissible area in respect of such landholding.Section 4 is not concerned with the landholding of any other person or family nor with the transfer of the rights of one landholder in favour of another.18. In Paragraph 24, the Full Bench has held that no doubt that sub-section (6) of Section 4 contemplates where a person is a member of family, the land held by such family together with the land held by all the members of the family shall be taken into account for the purposes of calculating the permissible area, that question can arise only in relation to a family, the provision is concerned only with the mathematical computation of the permissible area.19. In paragraph- 19, the Full Bench has held:-The petitioners say that while a husband and the children have the right to hold land a wife has been deprived of such right. There is nothing in the Act which can lead to that conclusion. A family, consisting of husband, wife and children has been recognised as a unit for the determination of the permissible area, and the land holding of the family as such is treated for that purpose. If a wife holds land separately in her own right, she is entitled to be treated as an individual person for the purposes of determining the permissible area available to her.” 19. From perusal of the aforementioned paragraphs of the Full Bench judgment, it appears that the High Court has completely departed from the plain language used in Section 4 of the said Act. The High Court has committed serious error of law in holding that if a wife holds land separately in her own right, she is entitled to be treated as an individual person for the purpose of determining the permissible area available to her. We are of the definite opinion that the Full Bench has not rightly interpreted the provisions of the Act. 20. The submission made by learned counsel appearing for the respondents that the impugned judgment needs no interference on the principle of stare decisis cannot be accepted. The decision relied upon by the respondents in the case of Gajnan (supra), this Court held that to maintain certainty in the judicial decision the court should refrain from interfering with such decision which stood for a long period. However, this Court has clearly laid down that this principle will be applicable “where the meaning of a statute is ambiguous and capable of more interpretations than one”. 21. This Court in Indra Sawhney and others vs. Union of India and others, etc. AIR (1993) SC 477 , in paragraph 26-A of the Judgment, considered the principle of stare decisis and observed that in the law certainty, consistency and continuity are highly desirable features. Where a decision has stood the test of time and has never been doubted, we have respected it unless, of course, there are compelling and strong reasons to depart from it. 22. We make it clear that to maintain certainty in the judicial decision, we have to restrain from interfering with the decision of the High Court which has stood for a long period on the principle of stare decisis. However, the said principle will be applicable where the meaning of the Statute is ambiguous and capable of more interpretation than one. In the instant case, the provision of the Act/Statute is very clear and, therefore, principle of stare decisis is of no help to the respondents.23. Apart from that it appears that the instant case arose out of certain proceedings initiated as far back as in 1974, and travelled up to this Court. The Full Bench judgment came only in the year 1976 and, therefore, in our considered opinion, the doctrine of stare decisis should not apply in the facts of the present case.24. Considering the entire facts of the case and the relevant provisions of the Act, we are of the definite opinion that the impugned judgment passed by the High Court is contrary to law, facts on record, and the findings recorded therein cannot be sustained. | 1[ds]22. We make it clear that to maintain certainty in the judicial decision, we have to restrain from interfering with the decision of the High Court which has stood for a long period on the principle of stare decisis. However, the said principle will be applicable where the meaning of the Statute is ambiguous and capable of more interpretation than one. In the instant case, the provision of the Act/Statute is very clear and, therefore, principle of stare decisis is of no help to the respondents.23. Apart from that it appears that the instant case arose out of certain proceedings initiated as far back as in 1974, and travelled up to this Court. The Full Bench judgment came only in the year 1976 and, therefore, in our considered opinion, the doctrine of stare decisis should not apply in the facts of the present case.24. Considering the entire facts of the case and the relevant provisions of the Act, we are of the definite opinion that the impugned judgment passed by the High Court is contrary to law, facts on record, and the findings recorded therein cannot be sustained. | 1 | 4,575 | 212 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
as he may deem fit and select the land for him in the manner specified in sub-section (1) of section 8.(3) If such person fails to furnish the declaration, the provisions of (Section 9) shall apply.(4) The excess land of such person shall be at the disposal of the State Government for utilization as surplus area under section 15 or for such other purpose as the State Government may by notification direct.Explanation:- In the case of family, the return may be furnished by any adult member of the family and in the case of the sole minor by his guardian:Provided that the Collector shall, before determining the surplus area, give to all the members of the family an opportunity of being heard.” 17. The aforesaid provision makes it clear that when any person/landowner acquires or succeeds land which is in excess of permissible area after the commencement of the Act, such land holder has to file separate return to the Collector as per Rule 16 of the Himachal Pradesh Ceiling on Land Holdings Rules, 1972. 18. The High Court passed the impugned order based on the decision of the Full Bench of the High Court in Rajkumar Rajindra Singh vs. Union of India, ILR 1976 HP 453. The Division Bench of the High Court quoted some of the paragraphs of Full Bench decision. In order to appreciate the impugned order, we shall quote paragraphs nos. 17, 18 and 19 of the impugned judgment as under:- “17. In Rajkumar Rajinder Singh’s case (supra), Full Bench of this Court in Paragraph-8 has held as under:-“………….It is the permissible area in the case of a person or a family. And it is the permissible area in respect of the landholding of such person or family. It is the landholding of such person or family alone which forms the subject-matter of Section 4, and the several sub-sections lay down the principles for the mathematical computation of the permissible area in respect of such landholding.Section 4 is not concerned with the landholding of any other person or family nor with the transfer of the rights of one landholder in favour of another.18. In Paragraph 24, the Full Bench has held that no doubt that sub-section (6) of Section 4 contemplates where a person is a member of family, the land held by such family together with the land held by all the members of the family shall be taken into account for the purposes of calculating the permissible area, that question can arise only in relation to a family, the provision is concerned only with the mathematical computation of the permissible area.19. In paragraph- 19, the Full Bench has held:-The petitioners say that while a husband and the children have the right to hold land a wife has been deprived of such right. There is nothing in the Act which can lead to that conclusion. A family, consisting of husband, wife and children has been recognised as a unit for the determination of the permissible area, and the land holding of the family as such is treated for that purpose. If a wife holds land separately in her own right, she is entitled to be treated as an individual person for the purposes of determining the permissible area available to her.” 19. From perusal of the aforementioned paragraphs of the Full Bench judgment, it appears that the High Court has completely departed from the plain language used in Section 4 of the said Act. The High Court has committed serious error of law in holding that if a wife holds land separately in her own right, she is entitled to be treated as an individual person for the purpose of determining the permissible area available to her. We are of the definite opinion that the Full Bench has not rightly interpreted the provisions of the Act. 20. The submission made by learned counsel appearing for the respondents that the impugned judgment needs no interference on the principle of stare decisis cannot be accepted. The decision relied upon by the respondents in the case of Gajnan (supra), this Court held that to maintain certainty in the judicial decision the court should refrain from interfering with such decision which stood for a long period. However, this Court has clearly laid down that this principle will be applicable “where the meaning of a statute is ambiguous and capable of more interpretations than one”. 21. This Court in Indra Sawhney and others vs. Union of India and others, etc. AIR (1993) SC 477 , in paragraph 26-A of the Judgment, considered the principle of stare decisis and observed that in the law certainty, consistency and continuity are highly desirable features. Where a decision has stood the test of time and has never been doubted, we have respected it unless, of course, there are compelling and strong reasons to depart from it. 22. We make it clear that to maintain certainty in the judicial decision, we have to restrain from interfering with the decision of the High Court which has stood for a long period on the principle of stare decisis. However, the said principle will be applicable where the meaning of the Statute is ambiguous and capable of more interpretation than one. In the instant case, the provision of the Act/Statute is very clear and, therefore, principle of stare decisis is of no help to the respondents.23. Apart from that it appears that the instant case arose out of certain proceedings initiated as far back as in 1974, and travelled up to this Court. The Full Bench judgment came only in the year 1976 and, therefore, in our considered opinion, the doctrine of stare decisis should not apply in the facts of the present case.24. Considering the entire facts of the case and the relevant provisions of the Act, we are of the definite opinion that the impugned judgment passed by the High Court is contrary to law, facts on record, and the findings recorded therein cannot be sustained.
### Response:
1
### Explanation:
22. We make it clear that to maintain certainty in the judicial decision, we have to restrain from interfering with the decision of the High Court which has stood for a long period on the principle of stare decisis. However, the said principle will be applicable where the meaning of the Statute is ambiguous and capable of more interpretation than one. In the instant case, the provision of the Act/Statute is very clear and, therefore, principle of stare decisis is of no help to the respondents.23. Apart from that it appears that the instant case arose out of certain proceedings initiated as far back as in 1974, and travelled up to this Court. The Full Bench judgment came only in the year 1976 and, therefore, in our considered opinion, the doctrine of stare decisis should not apply in the facts of the present case.24. Considering the entire facts of the case and the relevant provisions of the Act, we are of the definite opinion that the impugned judgment passed by the High Court is contrary to law, facts on record, and the findings recorded therein cannot be sustained.
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Director Of Income Tax(Exempn)N.Delhi Vs. Raunaq Education Foundation | 12) On the other hand, the learned counsel appearing for the assessee submitted that no illegality or irregularity of whatsoever type was committed by the assessee trust and he had relied upon the reasons recorded by the Income Tax Appellate Tribunal so to substantiate his case. He further submitted that the post dated cheque for Rs.40 lac was given before 31st March, 2002 i.e. during the accounting year 2001-2002 and the cheque was duly honoured in April, 2002 when it was presented before the collecting bank. As the cheque had been honoured and the amount was paid to the assessee trust, the date of payment of cheque should be treated as the date on which the cheque was given. Had the cheque been dishonoured, things would have been different but as the cheque had been duly honoured, as laid down by this court in the case of The Commissioner of Income-Tax, Bombay South, Bombay vs. Messrs. Ogale Glass Works Ltd., Ogale Wadi (1955 (1), SCR page 185), it will have to be presumed that the amount was paid on the date on which the cheque was given to the respondent assessee and, therefore, it cannot be said that any undue favour was done by the respondent-assessee to M/s Apollo Tyres Ltd. 13) Upon hearing the learned counsel for the parties, we find certain undisputed facts. It is not in dispute that though the assessee trust had issued receipt when it received the cheque dated 22nd April, 2002 for Rs.40 lac in March, 2002, it was clearly stated in its record that the amount of donation was receivable in future and accordingly, the said amount was also shown as donation receivable in the balance sheet prepared by the assessee trust as on 31st March, 2002. It is also not in dispute that M/s Apollo Tyres Ltd. did not avail any advantage of the said donation during the accounting year 2001-2002. Upon perusal of the Assessment Order of M/s Apollo Tyres Ltd. for the assessment year 2002-2003, it is clearly revealed that the cheque dated 22nd April, 2002 was not taken into account for giving benefit under Section 80G of the Act as the said amount was paid in April, 2002, when the cheque was honoured. The assessment order showing the above fact is a part of the record, which we have carefully perused. 14) The submission made on behalf of the respondent-assessee is supported by this court in the case of M/s Ogale Glass Works Ltd. (supra). Relying upon other authorities, this court observed as under in the aforesaid case : ??When it is said that a payment by negotiable instrument is a conditional payment what is meant is that such payment is subject to a condition subsequent that if the negotiable instrument is dishonoured on presentation the creditor may consider it as waste paper and resort to his original demand : Stedman v. Gooch (1793) 1 Esp.5. It is said in Benjamin on Sale, 8th Edition, page 788 :- ?The payment takes effect from the delivery of the bill, but is defeated by the happening of the condition, i.e., non-payment at maturity.? In Byles on Bills, 20th Edition, page 23, the position is summarised pithily as follows : ?A cheque, unless dishonoured, is payment.? To the same effect are the passages to be found in Hart on Banking, 4th Edition, Volume I, page 342. In Felix Hadley & Co. v. Hadley (L.R. (1898) 2 Ch.D.680, Byrne J. expressed the same idea in the following passage in his judgment at page 682 : ?In this case I think what took place amounted to a conditional payment of the debt; the condition being that the cheque or bill should be duly met or honoured at the proper date. If that be the true view, then I think the position is exactly as if an agreement had been expressly made that the bill or cheque should operate as payment unless defeated by dishonour or by not being met; and I think that that agreement is implied from giving and taking the cheques and bills in question.? The following observations of Lord Maugham in Rhokana Corporation v. Inland Revenue Commissioners (L.R. [1938] AC 380 at p.399) are also apposite: ?Apart from the express terms of section 33, sub-section 1, a similar conclusion might be founded on the well known common law rules as to the effect of the sending of a cheque in payment of a debt, and in the fact that though the payment is subject to the condition subsequent that the cheque must be met on presentation, the date of payment, if the cheque is duly met, is the date when the cheque was posted.? In the case before us none of the cheques has been dishonoured on presentation and payment cannot, therefore, be said to have been defeated by the happening of the condition subsequent, namely dishonour by non-payment and that being so there can be no question, therefore, that the assessee did not receive payment by the receipt of the cheques. The position, therefore, is that in one view of the matter there was, in the circumstances of this case, an implied agreement under which the cheques were accepted unconditionally as payment and on another view, even if the cheques were taken conditionally, the cheques not having been dishonoured but having been cashed, the payment related back to the dates of the receipt of the cheques and in law the dates of payments were the dates of the delivery of the cheques.?15) Looking into the aforestated undisputed facts, and the view expressed by this court in the case of M/s Ogale Glass Works Ltd. (supra), we are of the view that no irregularity had been committed by the assessee trust and there was no violation of the provisions of Sections 13(2)(b) or 13(2)(h) of the Act. The fact that most of the trustees of the assessee trust and the directors of M/s Apollo Tyres Ltd. are related is absolutely irrelevant. | 0[ds]In the case before us none of the cheques has been dishonoured on presentation and payment cannot, therefore, be said to have been defeated by the happening of the condition subsequent, namely dishonour byand that being so there can be no question, therefore, that the assessee did not receive payment by the receipt of the cheques. The position, therefore, is that in one view of the matter there was, in the circumstances of this case, an implied agreement under which the cheques were accepted unconditionally as payment and on another view, even if the cheques were taken conditionally, the cheques not having been dishonoured but having been cashed, the payment related back to the dates of the receipt of the cheques and in law the dates of payments were the dates of the delivery of the cheques.?15) Looking into the aforestated undisputed facts, and the view expressed by this court in the case of M/s Ogale Glass Works Ltd. (supra), we are of the view that no irregularity had been committed by the assessee trust and there was no violation of the provisions of Sections 13(2)(b) or 13(2)(h) of the Act. The fact that most of the trustees of the assessee trust and the directors of M/s Apollo Tyres Ltd. are related is absolutely irrelevant. | 0 | 2,191 | 255 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
12) On the other hand, the learned counsel appearing for the assessee submitted that no illegality or irregularity of whatsoever type was committed by the assessee trust and he had relied upon the reasons recorded by the Income Tax Appellate Tribunal so to substantiate his case. He further submitted that the post dated cheque for Rs.40 lac was given before 31st March, 2002 i.e. during the accounting year 2001-2002 and the cheque was duly honoured in April, 2002 when it was presented before the collecting bank. As the cheque had been honoured and the amount was paid to the assessee trust, the date of payment of cheque should be treated as the date on which the cheque was given. Had the cheque been dishonoured, things would have been different but as the cheque had been duly honoured, as laid down by this court in the case of The Commissioner of Income-Tax, Bombay South, Bombay vs. Messrs. Ogale Glass Works Ltd., Ogale Wadi (1955 (1), SCR page 185), it will have to be presumed that the amount was paid on the date on which the cheque was given to the respondent assessee and, therefore, it cannot be said that any undue favour was done by the respondent-assessee to M/s Apollo Tyres Ltd. 13) Upon hearing the learned counsel for the parties, we find certain undisputed facts. It is not in dispute that though the assessee trust had issued receipt when it received the cheque dated 22nd April, 2002 for Rs.40 lac in March, 2002, it was clearly stated in its record that the amount of donation was receivable in future and accordingly, the said amount was also shown as donation receivable in the balance sheet prepared by the assessee trust as on 31st March, 2002. It is also not in dispute that M/s Apollo Tyres Ltd. did not avail any advantage of the said donation during the accounting year 2001-2002. Upon perusal of the Assessment Order of M/s Apollo Tyres Ltd. for the assessment year 2002-2003, it is clearly revealed that the cheque dated 22nd April, 2002 was not taken into account for giving benefit under Section 80G of the Act as the said amount was paid in April, 2002, when the cheque was honoured. The assessment order showing the above fact is a part of the record, which we have carefully perused. 14) The submission made on behalf of the respondent-assessee is supported by this court in the case of M/s Ogale Glass Works Ltd. (supra). Relying upon other authorities, this court observed as under in the aforesaid case : ??When it is said that a payment by negotiable instrument is a conditional payment what is meant is that such payment is subject to a condition subsequent that if the negotiable instrument is dishonoured on presentation the creditor may consider it as waste paper and resort to his original demand : Stedman v. Gooch (1793) 1 Esp.5. It is said in Benjamin on Sale, 8th Edition, page 788 :- ?The payment takes effect from the delivery of the bill, but is defeated by the happening of the condition, i.e., non-payment at maturity.? In Byles on Bills, 20th Edition, page 23, the position is summarised pithily as follows : ?A cheque, unless dishonoured, is payment.? To the same effect are the passages to be found in Hart on Banking, 4th Edition, Volume I, page 342. In Felix Hadley & Co. v. Hadley (L.R. (1898) 2 Ch.D.680, Byrne J. expressed the same idea in the following passage in his judgment at page 682 : ?In this case I think what took place amounted to a conditional payment of the debt; the condition being that the cheque or bill should be duly met or honoured at the proper date. If that be the true view, then I think the position is exactly as if an agreement had been expressly made that the bill or cheque should operate as payment unless defeated by dishonour or by not being met; and I think that that agreement is implied from giving and taking the cheques and bills in question.? The following observations of Lord Maugham in Rhokana Corporation v. Inland Revenue Commissioners (L.R. [1938] AC 380 at p.399) are also apposite: ?Apart from the express terms of section 33, sub-section 1, a similar conclusion might be founded on the well known common law rules as to the effect of the sending of a cheque in payment of a debt, and in the fact that though the payment is subject to the condition subsequent that the cheque must be met on presentation, the date of payment, if the cheque is duly met, is the date when the cheque was posted.? In the case before us none of the cheques has been dishonoured on presentation and payment cannot, therefore, be said to have been defeated by the happening of the condition subsequent, namely dishonour by non-payment and that being so there can be no question, therefore, that the assessee did not receive payment by the receipt of the cheques. The position, therefore, is that in one view of the matter there was, in the circumstances of this case, an implied agreement under which the cheques were accepted unconditionally as payment and on another view, even if the cheques were taken conditionally, the cheques not having been dishonoured but having been cashed, the payment related back to the dates of the receipt of the cheques and in law the dates of payments were the dates of the delivery of the cheques.?15) Looking into the aforestated undisputed facts, and the view expressed by this court in the case of M/s Ogale Glass Works Ltd. (supra), we are of the view that no irregularity had been committed by the assessee trust and there was no violation of the provisions of Sections 13(2)(b) or 13(2)(h) of the Act. The fact that most of the trustees of the assessee trust and the directors of M/s Apollo Tyres Ltd. are related is absolutely irrelevant.
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0
### Explanation:
In the case before us none of the cheques has been dishonoured on presentation and payment cannot, therefore, be said to have been defeated by the happening of the condition subsequent, namely dishonour byand that being so there can be no question, therefore, that the assessee did not receive payment by the receipt of the cheques. The position, therefore, is that in one view of the matter there was, in the circumstances of this case, an implied agreement under which the cheques were accepted unconditionally as payment and on another view, even if the cheques were taken conditionally, the cheques not having been dishonoured but having been cashed, the payment related back to the dates of the receipt of the cheques and in law the dates of payments were the dates of the delivery of the cheques.?15) Looking into the aforestated undisputed facts, and the view expressed by this court in the case of M/s Ogale Glass Works Ltd. (supra), we are of the view that no irregularity had been committed by the assessee trust and there was no violation of the provisions of Sections 13(2)(b) or 13(2)(h) of the Act. The fact that most of the trustees of the assessee trust and the directors of M/s Apollo Tyres Ltd. are related is absolutely irrelevant.
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Commnr. Of Customs, Kandla Vs. M/S. Essar Oil Ltd. | has quoted from In re Nice & Schreiber 123 F. 988 to give a plausible meaning for the said word. He says, the expression reasonable is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined." 43. From the factual scenario described it is clear that respondent no.1 was aware that there was no fund available. In fact, from 3.3.1999 it accepted the position that there was no fund available and was asking for time to arrange funds. This according to us clearly indicated a fraudulent motive and the declaration given was certainly mis-declaration. Therefore, the CEGAT was not right in its conclusions about inapplicability of Section 51(1)(c) to the facts of the case. The demand of duty and order of confiscation by the Commissioner is clearly sustainable.44. So far the respondents 2 to 4 are concerned, the Commissioners findings were as follows: (1) Respondent No.2 - Sri S.R. Agarwal gave instructions from time to time for clearance of all imported goods before pronouncement of Union Budget 1999. There was no requisition from Essar Projects Ltd. (in short EPL) or the contractors for such goods. Incharge of finance portfolio was fully aware of the financial status of the assessee. In spite of his personal knowledge he instructed respondent No.3 (Sri P.R. Ashok) to complete the formalities. The intention to defraud is apparent from his fax message dated 24.2.1999 instructing to clear that goods at the current duty rate and not to expose to any change in the budget. His mala fide intents is apparent from the letters addressed by him to the Chief Commissioner and DRI authorities wherein he had significantly suppressed the fact that cheque had been tendered on the basis of a false declaration regarding availability of funds. All along he stuck to the plea that mere late realization was of no consequence and since cheque was not dishonored duty at post-budget rates cannot be levied.(2) Respondent No.3-Sri P.R. Ashok was fully aware of the fact about non-availability of funds. But he made a false declaration about sufficiency of funds. The cheque was not on a Bank at Jamnagar, but at Rajkot. This was a part of a well planned plan to perpetuate fraud.(3) Respondent No.4 - Sri Nitin Bhat was in charge of Customs clearance related work. In his letters to the Customs authorities he clearly stated about availability of funds when moving for cancellation of warehouse licence. He also played active part in ensuring that the Bank does not return the cheque. 45. In view of the aforesaid, it was concluded by the Commissioner that in respect of the imported goods the aforesaid three persons have done or omitted to do acts which acts or omissions have rendered such goods liable for confiscation and they had also abetted in acts which they knew or had reasons to believe that the goods are liable to confiscation under Section 112(j) of the Act and rendered themselves liable to action under Section 112(a) of the Act. Accordingly penalties as noted above were levied on the respondents 2, 3 and 4.46. As regards the Departmental Officials (respondent 5 to 7) the Commissioner took note of several factors.(1) As regards Sri S.P. Chaudhuri it was noted that notwithstanding specific direction of Superintendent (Tech). Jamnagar to the effect that date of cancellation should be taken to be the date of actual removal of goods from warehouse". It was concluded that Sri Chaudhuri failed to ensure actual removal for the purpose of cancellation of warehouse licence. All the three officers failed to take note the physical removal of approximately 20.000 Mts. Cargo covered under 84 Bills of Entry from the bonded warehouse could not have been possible in a short span of one day. The officers acted in undue haste and resorted to backdating as a accepted by them in their statements. It was noted that the three officers were located far apart from each other. Therefore, processing the files at various stages and/ or places on the same day is not practicable. The sequence of processing files confirmed the backdating of documents which was admitted by the officers. The prime responsibility for scrutinizing the relevant documents was on Sri A.C. Sharma who failed to do that. The other officers committed acts of omission under the overall guidance and supervision of Sri Sharma. The plea for protection under Section 155 of the Act was rejected. Penalty under Section 112(a) in respect of each of the officers was levied.47. CEGAT did not consider the aberrations highlighted by the Commissioner and in a very cryptic manner dealt with the issues. No plausible reason has been indicated as to why the allegations which are quite serious in nature and the conclusions in relation thereto recorded by the Commissioner were not to be maintained. Only an abrupt conclusion was reached that Sri Thakur and Sri Chaudhuri had absolutely no connection with the acceptance of cheques. There was not even any reference to the allegations regarding accepted backdating or acting contrary to specific directions. Sri Sharma was given a clean chit in view of the finding recorded about the date on which receipt of payment has to be taken. Here again the allegations were not considered in the proper perspective. The findings regarding deemed removal are really inconsequential in the present dispute as the very foundation for removal was based on established fraud. Therefore, it is not necessary in the present dispute to go into the question regarding effect of deemed removal.48. The manipulative role of respondents 2 to 7 have been clearly established. They were clearly active participants in the well-planned deception and fraudulent acts pleading to evasion of duty. They had played major roles in the whole game of fraud and deception. There was clearly willful disregard and deliberate defiance of statutory provisions. Levy of penalty is clearly warranted. Impugned order of CEGAT is set aside and order of Commissioner is restored.49. | 1[ds]So far as Issue No.3 is concerned, in view of the operative portion of the order of the Commissioner was to the effect that the goods valued at Rs. 599,26,00046 was to be confiscated under Section 111(j) of the Act as the imported goods except good worth Rs. 73.93 crores which were covered by corporate guarantee. Redemption fine of Rs. 20 crores in view of confiscation was imposed. Total demand of Rs. 96,26,91.711/- was confirmed under Section 28(1) proviso of the Act as also in terms of statement made on behalf of respondent no.1 before the Gujarat High Court on 17.5.1999. The duty was worked out on the basis of computation in the show cause notice. Penalty of rupees ten crores was imposed on respondent no.1 under Section 112(b) of the Act. Penalty of rupees one crore was levied on respondent no. 2 under Section 112(a). Penalty of rupees 25 lakhs and rupees 10 lakhs was imposed on respondents 3 and 4 respectively under Section 112(a) of the Act. Penalty of rupees 5 lakhs was imposed on Shri A.C. Sharma, Deputy Commissioner of Central Excise. Rupees 50,000/- and rupees 25,000/- were imposed as penalty respectively on customs officials i.e. S.P. Chaudhary and Shri K.N. Thakar under Section 112(a) of the Act. Recovery of interest leviable under Section 17(2) and Section 28AB of the Act was directed. Direction was given that deposits made towards duty were to be adjusted against duty and interest liability as determined. As noted above appeals were filed before CEGAT by the present respondents. Their basic stand was that Section 15(1)(c) had no application and it was Section 15(1)(b) of the Act which applied. It was submitted that when the cheque has been cleared and honored payment had to be treated to have been made on the date on which the cheque was handed over to the authority. There was no fraudulent intention involved. Respondent no.1 and its officials acted bona fide on the assurance given by ICICI Ltd. Negotiations for funds were going on since long. Therefore, the order of the Commissioner is not tenable.It is to be noted that the plea that in view of special statutory prescriptions reference to the trade notice was unnecessary does not appear to have been pleaded or considered by the CEGAT which proceeded only to determine the issue as to on which date the payment shall be reckoned to have been made. The entire case of the revenue was built around the alleged fraudulent acts of respondent no.1 and its officials and the customs officials. According to the revenue it was clearly a case where the declaration was done with fraudulent intention, with planned design to evade duty. Several aspects were highlighted to show that the respondent no.1 and its officials were acting with fraudulent intention. The Tribunal did not even consider the effect of those acts.From the factual scenario described it is clear that respondent no.1 was aware that there was no fund available. In fact, from 3.3.1999 it accepted the position that there was no fund available and was asking for time to arrange funds. This according to us clearly indicated a fraudulent motive and the declaration given was certainly mis-declaration. Therefore, the CEGAT was not right in its conclusions about inapplicability of Section 51(1)(c) to the facts of the case. The demand of duty and order of confiscation by the Commissioner is clearly sustainable.44. So far the respondents 2 to 4 are concerned, the Commissioners findings were asRespondent No.2 - Sri S.R. Agarwal gave instructions from time to time for clearance of all imported goods before pronouncement of Union Budget 1999. There was no requisition from Essar Projects Ltd. (in short EPL) or the contractors for such goods. Incharge of finance portfolio was fully aware of the financial status of the assessee. In spite of his personal knowledge he instructed respondent No.3 (Sri P.R. Ashok) to complete the formalities. The intention to defraud is apparent from his fax message dated 24.2.1999 instructing to clear that goods at the current duty rate and not to expose to any change in the budget. His mala fide intents is apparent from the letters addressed by him to the Chief Commissioner and DRI authorities wherein he had significantly suppressed the fact that cheque had been tendered on the basis of a false declaration regarding availability of funds. All along he stuck to the plea that mere late realization was of no consequence and since cheque was not dishonored duty at post-budget rates cannot be levied.(2) Respondent No.3-Sri P.R. Ashok was fully aware of the fact about non-availability of funds. But he made a false declaration about sufficiency of funds. The cheque was not on a Bank at Jamnagar, but at Rajkot. This was a part of a well planned plan to perpetuate fraud.(3) Respondent No.4 - Sri Nitin Bhat was in charge of Customs clearance related work. In his letters to the Customs authorities he clearly stated about availability of funds when moving for cancellation of warehouse licence. He also played active part in ensuring that the Bank does not return the cheque.In view of the aforesaid, it was concluded by the Commissioner that in respect of the imported goods the aforesaid three persons have done or omitted to do acts which acts or omissions have rendered such goods liable for confiscation and they had also abetted in acts which they knew or had reasons to believe that the goods are liable to confiscation under Section 112(j) of the Act and rendered themselves liable to action under Section 112(a) of the Act. Accordingly penalties as noted above were levied on the respondents 2, 3 and 4.46. As regards the Departmental Officials (respondent 5 to 7) the Commissioner took note of several factors.(1) As regards Sri S.P. Chaudhuri it was noted that notwithstanding specific direction of Superintendent (Tech). Jamnagar to the effect that date of cancellation should be taken to be the date of actual removal of goods from warehouse". It was concluded that Sri Chaudhuri failed to ensure actual removal for the purpose of cancellation of warehouse licence. All the three officers failed to take note the physical removal of approximately 20.000 Mts. Cargo covered under 84 Bills of Entry from the bonded warehouse could not have been possible in a short span of one day. The officers acted in undue haste and resorted to backdating as a accepted by them in their statements. It was noted that the three officers were located far apart from each other. Therefore, processing the files at various stages and/ or places on the same day is not practicable. The sequence of processing files confirmed the backdating of documents which was admitted by the officers. The prime responsibility for scrutinizing the relevant documents was on Sri A.C. Sharma who failed to do that. The other officers committed acts of omission under the overall guidance and supervision of Sri Sharma. The plea for protection under Section 155 of the Act was rejected. Penalty under Section 112(a) in respect of each of the officers was levied.47. CEGAT did not consider the aberrations highlighted by the Commissioner and in a very cryptic manner dealt with the issues. No plausible reason has been indicated as to why the allegations which are quite serious in nature and the conclusions in relation thereto recorded by the Commissioner were not to be maintained. Only an abrupt conclusion was reached that Sri Thakur and Sri Chaudhuri had absolutely no connection with the acceptance of cheques. There was not even any reference to the allegations regarding accepted backdating or acting contrary to specific directions. Sri Sharma was given a clean chit in view of the finding recorded about the date on which receipt of payment has to be taken. Here again the allegations were not considered in the proper perspective. The findings regarding deemed removal are really inconsequential in the present dispute as the very foundation for removal was based on established fraud. Therefore, it is not necessary in the present dispute to go into the question regarding effect of deemed removal.48. The manipulative role of respondents 2 to 7 have been clearly established. They were clearly active participants in the well-planned deception and fraudulent acts pleading to evasion of duty. They had played major roles in the whole game of fraud and deception. There was clearly willful disregard and deliberate defiance of statutory provisions. Levy of penalty is clearly warranted. Impugned order of CEGAT is set aside and order of Commissioner is restored. | 1 | 7,987 | 1,585 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
has quoted from In re Nice & Schreiber 123 F. 988 to give a plausible meaning for the said word. He says, the expression reasonable is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined." 43. From the factual scenario described it is clear that respondent no.1 was aware that there was no fund available. In fact, from 3.3.1999 it accepted the position that there was no fund available and was asking for time to arrange funds. This according to us clearly indicated a fraudulent motive and the declaration given was certainly mis-declaration. Therefore, the CEGAT was not right in its conclusions about inapplicability of Section 51(1)(c) to the facts of the case. The demand of duty and order of confiscation by the Commissioner is clearly sustainable.44. So far the respondents 2 to 4 are concerned, the Commissioners findings were as follows: (1) Respondent No.2 - Sri S.R. Agarwal gave instructions from time to time for clearance of all imported goods before pronouncement of Union Budget 1999. There was no requisition from Essar Projects Ltd. (in short EPL) or the contractors for such goods. Incharge of finance portfolio was fully aware of the financial status of the assessee. In spite of his personal knowledge he instructed respondent No.3 (Sri P.R. Ashok) to complete the formalities. The intention to defraud is apparent from his fax message dated 24.2.1999 instructing to clear that goods at the current duty rate and not to expose to any change in the budget. His mala fide intents is apparent from the letters addressed by him to the Chief Commissioner and DRI authorities wherein he had significantly suppressed the fact that cheque had been tendered on the basis of a false declaration regarding availability of funds. All along he stuck to the plea that mere late realization was of no consequence and since cheque was not dishonored duty at post-budget rates cannot be levied.(2) Respondent No.3-Sri P.R. Ashok was fully aware of the fact about non-availability of funds. But he made a false declaration about sufficiency of funds. The cheque was not on a Bank at Jamnagar, but at Rajkot. This was a part of a well planned plan to perpetuate fraud.(3) Respondent No.4 - Sri Nitin Bhat was in charge of Customs clearance related work. In his letters to the Customs authorities he clearly stated about availability of funds when moving for cancellation of warehouse licence. He also played active part in ensuring that the Bank does not return the cheque. 45. In view of the aforesaid, it was concluded by the Commissioner that in respect of the imported goods the aforesaid three persons have done or omitted to do acts which acts or omissions have rendered such goods liable for confiscation and they had also abetted in acts which they knew or had reasons to believe that the goods are liable to confiscation under Section 112(j) of the Act and rendered themselves liable to action under Section 112(a) of the Act. Accordingly penalties as noted above were levied on the respondents 2, 3 and 4.46. As regards the Departmental Officials (respondent 5 to 7) the Commissioner took note of several factors.(1) As regards Sri S.P. Chaudhuri it was noted that notwithstanding specific direction of Superintendent (Tech). Jamnagar to the effect that date of cancellation should be taken to be the date of actual removal of goods from warehouse". It was concluded that Sri Chaudhuri failed to ensure actual removal for the purpose of cancellation of warehouse licence. All the three officers failed to take note the physical removal of approximately 20.000 Mts. Cargo covered under 84 Bills of Entry from the bonded warehouse could not have been possible in a short span of one day. The officers acted in undue haste and resorted to backdating as a accepted by them in their statements. It was noted that the three officers were located far apart from each other. Therefore, processing the files at various stages and/ or places on the same day is not practicable. The sequence of processing files confirmed the backdating of documents which was admitted by the officers. The prime responsibility for scrutinizing the relevant documents was on Sri A.C. Sharma who failed to do that. The other officers committed acts of omission under the overall guidance and supervision of Sri Sharma. The plea for protection under Section 155 of the Act was rejected. Penalty under Section 112(a) in respect of each of the officers was levied.47. CEGAT did not consider the aberrations highlighted by the Commissioner and in a very cryptic manner dealt with the issues. No plausible reason has been indicated as to why the allegations which are quite serious in nature and the conclusions in relation thereto recorded by the Commissioner were not to be maintained. Only an abrupt conclusion was reached that Sri Thakur and Sri Chaudhuri had absolutely no connection with the acceptance of cheques. There was not even any reference to the allegations regarding accepted backdating or acting contrary to specific directions. Sri Sharma was given a clean chit in view of the finding recorded about the date on which receipt of payment has to be taken. Here again the allegations were not considered in the proper perspective. The findings regarding deemed removal are really inconsequential in the present dispute as the very foundation for removal was based on established fraud. Therefore, it is not necessary in the present dispute to go into the question regarding effect of deemed removal.48. The manipulative role of respondents 2 to 7 have been clearly established. They were clearly active participants in the well-planned deception and fraudulent acts pleading to evasion of duty. They had played major roles in the whole game of fraud and deception. There was clearly willful disregard and deliberate defiance of statutory provisions. Levy of penalty is clearly warranted. Impugned order of CEGAT is set aside and order of Commissioner is restored.49.
### Response:
1
### Explanation:
officials and the customs officials. According to the revenue it was clearly a case where the declaration was done with fraudulent intention, with planned design to evade duty. Several aspects were highlighted to show that the respondent no.1 and its officials were acting with fraudulent intention. The Tribunal did not even consider the effect of those acts.From the factual scenario described it is clear that respondent no.1 was aware that there was no fund available. In fact, from 3.3.1999 it accepted the position that there was no fund available and was asking for time to arrange funds. This according to us clearly indicated a fraudulent motive and the declaration given was certainly mis-declaration. Therefore, the CEGAT was not right in its conclusions about inapplicability of Section 51(1)(c) to the facts of the case. The demand of duty and order of confiscation by the Commissioner is clearly sustainable.44. So far the respondents 2 to 4 are concerned, the Commissioners findings were asRespondent No.2 - Sri S.R. Agarwal gave instructions from time to time for clearance of all imported goods before pronouncement of Union Budget 1999. There was no requisition from Essar Projects Ltd. (in short EPL) or the contractors for such goods. Incharge of finance portfolio was fully aware of the financial status of the assessee. In spite of his personal knowledge he instructed respondent No.3 (Sri P.R. Ashok) to complete the formalities. The intention to defraud is apparent from his fax message dated 24.2.1999 instructing to clear that goods at the current duty rate and not to expose to any change in the budget. His mala fide intents is apparent from the letters addressed by him to the Chief Commissioner and DRI authorities wherein he had significantly suppressed the fact that cheque had been tendered on the basis of a false declaration regarding availability of funds. All along he stuck to the plea that mere late realization was of no consequence and since cheque was not dishonored duty at post-budget rates cannot be levied.(2) Respondent No.3-Sri P.R. Ashok was fully aware of the fact about non-availability of funds. But he made a false declaration about sufficiency of funds. The cheque was not on a Bank at Jamnagar, but at Rajkot. This was a part of a well planned plan to perpetuate fraud.(3) Respondent No.4 - Sri Nitin Bhat was in charge of Customs clearance related work. In his letters to the Customs authorities he clearly stated about availability of funds when moving for cancellation of warehouse licence. He also played active part in ensuring that the Bank does not return the cheque.In view of the aforesaid, it was concluded by the Commissioner that in respect of the imported goods the aforesaid three persons have done or omitted to do acts which acts or omissions have rendered such goods liable for confiscation and they had also abetted in acts which they knew or had reasons to believe that the goods are liable to confiscation under Section 112(j) of the Act and rendered themselves liable to action under Section 112(a) of the Act. Accordingly penalties as noted above were levied on the respondents 2, 3 and 4.46. As regards the Departmental Officials (respondent 5 to 7) the Commissioner took note of several factors.(1) As regards Sri S.P. Chaudhuri it was noted that notwithstanding specific direction of Superintendent (Tech). Jamnagar to the effect that date of cancellation should be taken to be the date of actual removal of goods from warehouse". It was concluded that Sri Chaudhuri failed to ensure actual removal for the purpose of cancellation of warehouse licence. All the three officers failed to take note the physical removal of approximately 20.000 Mts. Cargo covered under 84 Bills of Entry from the bonded warehouse could not have been possible in a short span of one day. The officers acted in undue haste and resorted to backdating as a accepted by them in their statements. It was noted that the three officers were located far apart from each other. Therefore, processing the files at various stages and/ or places on the same day is not practicable. The sequence of processing files confirmed the backdating of documents which was admitted by the officers. The prime responsibility for scrutinizing the relevant documents was on Sri A.C. Sharma who failed to do that. The other officers committed acts of omission under the overall guidance and supervision of Sri Sharma. The plea for protection under Section 155 of the Act was rejected. Penalty under Section 112(a) in respect of each of the officers was levied.47. CEGAT did not consider the aberrations highlighted by the Commissioner and in a very cryptic manner dealt with the issues. No plausible reason has been indicated as to why the allegations which are quite serious in nature and the conclusions in relation thereto recorded by the Commissioner were not to be maintained. Only an abrupt conclusion was reached that Sri Thakur and Sri Chaudhuri had absolutely no connection with the acceptance of cheques. There was not even any reference to the allegations regarding accepted backdating or acting contrary to specific directions. Sri Sharma was given a clean chit in view of the finding recorded about the date on which receipt of payment has to be taken. Here again the allegations were not considered in the proper perspective. The findings regarding deemed removal are really inconsequential in the present dispute as the very foundation for removal was based on established fraud. Therefore, it is not necessary in the present dispute to go into the question regarding effect of deemed removal.48. The manipulative role of respondents 2 to 7 have been clearly established. They were clearly active participants in the well-planned deception and fraudulent acts pleading to evasion of duty. They had played major roles in the whole game of fraud and deception. There was clearly willful disregard and deliberate defiance of statutory provisions. Levy of penalty is clearly warranted. Impugned order of CEGAT is set aside and order of Commissioner is restored.
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Wadhya Mal Vs. Prem Chand Jain and Another | Desai, J.1. Special leave to appeal granted.2. We heard learned counsel Mr. O.P. Verma for the appellant, learned counsel Mr. J.P. Goyal for respondent 1 and learned counsel J.L. Nain for respondent 2. The only point involved in this appeal at this stage is that the present appellant who had preferred an appeal against an award made by Motor Accidents Claims Tribunal was dismissed by the High Court on the short ground that it was barred by limitation, after rejecting the application for condoning the delay in preferring the appeal.3. The award was made by Second Additional Motor Accidents Claims Tribunal, Meerut on March 31, 1977. Appellant was the owner of the truck involved in the accident in which respondent 1 was injured. Respondent 1 preferred First Appeal 266 of 1977 against the aforementioned award. Respondent 2 - insurer, preferred First Appeal 248 of 1977 against the same award. We are informed that both these appeals are pending in the High Court.4. The present appellant preferred an appeal against the same award. The appeal of the present appellant has been dismissed on the ground that it is barred by limitation. This conclusion was recorded after the application of the appellant for condoning delay was rejected.5. In view of the fact that the award dated March 31, 1977 is under challenge in two appeals, it is just and proper that the appeal of the present appellant may also be entertained and may be disposed of on merits along with aforementioned two appeals. May be, there was some delay in preferring the appeal by the present appellant, but if one goes through the zigzag course of the proceedings, it would appear that there was at least some justification for the appellant being misled as to when he should have preferred his appeal. To briefly trace the course of this proceeding, it may be pointed out that the claimants filed an appeal of which notice was served on the appellant on November 12, 1977. There was some ex parte proceedings and the application was made to set aside the same. By an application dated March 4, 1978, a prayer was made for setting aside the ex parte award. This application appears to have been rejected, and an appeal against the order was held not to be maintainable. Thereafter the appellant filed an appeal against the award which was obviously time barred and his application for condoning delay was rejected on the ground that his moving from pillar to post would not be a sufficient ground for condoning the delay. We need not take a very strict view of the matter and we consider it appropriate to give an opportunity to the appellant to get his appeal adjudicated on merits on the only ground that the award which he seeks to challenge is under appeal by respondent 1 and respondent 2. | 1[ds]3. The award was made by Second Additional Motor Accidents Claims Tribunal, Meerut on March 31, 1977. Appellant was the owner of the truck involved in the accident in which respondent 1 was injured. Respondent 1 preferred First Appeal 266 of 1977 against the aforementioned award. Respondent 2insurer, preferred First Appeal 248 of 1977 against the same award. We are informed that both these appeals are pending in the High Court.4. The present appellant preferred an appeal against the same award. The appeal of the present appellant has been dismissed on the ground that it is barred by limitation. This conclusion was recorded after the application of the appellant for condoning delay was rejected. | 1 | 515 | 130 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Desai, J.1. Special leave to appeal granted.2. We heard learned counsel Mr. O.P. Verma for the appellant, learned counsel Mr. J.P. Goyal for respondent 1 and learned counsel J.L. Nain for respondent 2. The only point involved in this appeal at this stage is that the present appellant who had preferred an appeal against an award made by Motor Accidents Claims Tribunal was dismissed by the High Court on the short ground that it was barred by limitation, after rejecting the application for condoning the delay in preferring the appeal.3. The award was made by Second Additional Motor Accidents Claims Tribunal, Meerut on March 31, 1977. Appellant was the owner of the truck involved in the accident in which respondent 1 was injured. Respondent 1 preferred First Appeal 266 of 1977 against the aforementioned award. Respondent 2 - insurer, preferred First Appeal 248 of 1977 against the same award. We are informed that both these appeals are pending in the High Court.4. The present appellant preferred an appeal against the same award. The appeal of the present appellant has been dismissed on the ground that it is barred by limitation. This conclusion was recorded after the application of the appellant for condoning delay was rejected.5. In view of the fact that the award dated March 31, 1977 is under challenge in two appeals, it is just and proper that the appeal of the present appellant may also be entertained and may be disposed of on merits along with aforementioned two appeals. May be, there was some delay in preferring the appeal by the present appellant, but if one goes through the zigzag course of the proceedings, it would appear that there was at least some justification for the appellant being misled as to when he should have preferred his appeal. To briefly trace the course of this proceeding, it may be pointed out that the claimants filed an appeal of which notice was served on the appellant on November 12, 1977. There was some ex parte proceedings and the application was made to set aside the same. By an application dated March 4, 1978, a prayer was made for setting aside the ex parte award. This application appears to have been rejected, and an appeal against the order was held not to be maintainable. Thereafter the appellant filed an appeal against the award which was obviously time barred and his application for condoning delay was rejected on the ground that his moving from pillar to post would not be a sufficient ground for condoning the delay. We need not take a very strict view of the matter and we consider it appropriate to give an opportunity to the appellant to get his appeal adjudicated on merits on the only ground that the award which he seeks to challenge is under appeal by respondent 1 and respondent 2.
### Response:
1
### Explanation:
3. The award was made by Second Additional Motor Accidents Claims Tribunal, Meerut on March 31, 1977. Appellant was the owner of the truck involved in the accident in which respondent 1 was injured. Respondent 1 preferred First Appeal 266 of 1977 against the aforementioned award. Respondent 2insurer, preferred First Appeal 248 of 1977 against the same award. We are informed that both these appeals are pending in the High Court.4. The present appellant preferred an appeal against the same award. The appeal of the present appellant has been dismissed on the ground that it is barred by limitation. This conclusion was recorded after the application of the appellant for condoning delay was rejected.
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Hari Shankar Gaur And Anr. Etc Vs. Delhi Transport Corporation And Ors | State Civil Service Rules are concerned, a copy of it in Hindi has been filed by the petitioners with the English translation thereof. It is not disputed that these were the rules governing the civil servants in the Gwalior State. It is also not disputed that GNIT Company was originally a Company incorporated in India where it was owned by the rulers of the erstwhile Gwalior State. According to petitioners Civil Service Rules of Gwalior were made applicable to these people. In addition to what has been stated in the petition and which has not been controverted, they have also filed a judgment of the Industrial Court in Madhya Pradesh where this question about the conditions of service about retirement came into dispute after the formation of Madhya Bharat and the part of GNIT Company which was operating in the territories of the erstwhile State of Madhya Bharat was taken over by the State of Madhya Bharat Road Transport Corporation. There too, a similar agreement was reached and the question arose as to whether the persons who were in employment before the taking over, were governed by the Rules of the Gwalior State Civil Servants. It was held that those were the rules and in those rules the normal age of retirement was 60 years. 5. In view of these circumstances it appears beyond doubt that these people who were employed in the GNIT Company before taking over in Delhi by the Government of India were governed by the Gwalior State Civil Service Rules. The Gwalior Civil Service Rules provided: “CHAPTER 1-A7 (a) (1) Every employee has a right to seek retirement from service after attaining the age of 55 years.(2) the Government also has authority not to allow any employee to continue in employment after attaining the age of 55 years and order his retirement.(3) In case an employee does not seek retirement from service after attaining the age of 55 years or the Government also does not order his retirement from service, than he shall continue in service till he attains the age of 60 years.(4) Every employee shall compulsory retire after attaining the age of 60 years provided his service are not ordered to be terminated earlier.(5) An employee who retires under these rules shall be entitled for Pension or Gratuity to which he is entitled according to the rules.Note (1): These Rules will not apply to the Police Personnels.Note (2): The concerned Departments shall initiate retirement proceeding against those employees who have attained age of 60 years at the time of enforcement of the rules but immediate action shall be taken for release of Pension or Gratuity in case of those who have become entitled for Gratuity or Pension and till pension or gratuity is not sanctioned they shall not be retired. In future this procedure shall be followed that action for Pension or Gratuity shall be initiated one year in advance to which he is entitled at the age of 60 years in case of an employee who retires at the age of 60 years so that there shall be no delay in retiring him after attaining the age of 60 years”. 6. The above rules it indicates clearly an employee who does not seek retirement from service after attaining the age of 55 years or if the Government does not order his retirement at that age, shall continue in service till he attains the age of 60 years. It is also (indicated with unmistakably terms that every employee shall compulsorily retire after attaining the age of 60 years provided his services are not ordered to be terminated earlier. In other words the age of retirement was 60 years. Option however was there for the employee to seek voluntary retirement at 55 years and for the Government to compulsorily retire him at 55. 7. Counsel for the respondent does not dispute the above provisions. He, however, argued that the age of 55 years at which an employee could be asked to retire has been raised by the Corporation from 55 to 58 and if an employee has been retired at 58 it was not prejudicial to him since he could have been retired in his erstwhile company only at 55. Our attention was invited to Service Regulations of the Corporation providing for these matters. The argument is attractive but on a deeper consideration we find little merit in it. If the Delhi Transport Corporation had exercised its right to retire the petitioners on attaining the age of 58 years, the argument would have been tenable. But that was not done by the Corporation. The Corporation retired the petitioners on the ground that they attained the age of superannuation at 58 years. It is so stated by the notice (Annex. E) dated January 2, 1986 issued by the Deputy Personnel Officer-I to Hari Shankar Gaur––Petitioner in W.P. No. 1244/86. The notice reads: “DELHI TRANSPORT CORPORATIONA GOVERNMENT OF INDIA UNDERTAKINGI.P. ESTATE: NEW DELHINo. PLD-IX (PF)/85/128 Dt. 2.1.1986Shri Hari Shankar Gaur s/o Shri M.L. Gaur, Office Supdt. will attain the age of superannuation i.e. 58 years on 31-1-1986. He shall, therefore, retire from the service of this Corporation with effect from 31.1.1986 in accordance with clause 10 of the D.R.T. Act (Conditions of Appointment and Service) Regulations, 1952 read with office order No. PLD/2479, dated 7.3.1974. He may avail earned leave due to him prior to 31.1.1986, if he desires”. We are told similar notices were issued to other employees as well. That means the Corporation was under the impression that the petitioners have no right to continue beyond the age of 58 years.8. We are, therefore, of the opinion that the persons who originally were in the employment of GNIT and were employed prior to October 28, 1946 and who continued in service till May 14, 1948 and onwards will have the right to remain in service upto 60 years unless the option to retire was exercised by the person or by the Corporation at 55 years. | 1[ds]We are told similar notices were issued to other employees as well. That means the Corporation was under the impression that the petitioners have no right to continue beyond the age of 58 years.8. We are, therefore, of the opinion that the persons who originally were in the employment of GNIT and were employed prior to October 28, 1946 and who continued in service till May 14, 1948 and onwards will have the right to remain in service upto 60 years unless the option to retire was exercised by the person or by the Corporation at 55 years. | 1 | 1,557 | 109 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
State Civil Service Rules are concerned, a copy of it in Hindi has been filed by the petitioners with the English translation thereof. It is not disputed that these were the rules governing the civil servants in the Gwalior State. It is also not disputed that GNIT Company was originally a Company incorporated in India where it was owned by the rulers of the erstwhile Gwalior State. According to petitioners Civil Service Rules of Gwalior were made applicable to these people. In addition to what has been stated in the petition and which has not been controverted, they have also filed a judgment of the Industrial Court in Madhya Pradesh where this question about the conditions of service about retirement came into dispute after the formation of Madhya Bharat and the part of GNIT Company which was operating in the territories of the erstwhile State of Madhya Bharat was taken over by the State of Madhya Bharat Road Transport Corporation. There too, a similar agreement was reached and the question arose as to whether the persons who were in employment before the taking over, were governed by the Rules of the Gwalior State Civil Servants. It was held that those were the rules and in those rules the normal age of retirement was 60 years. 5. In view of these circumstances it appears beyond doubt that these people who were employed in the GNIT Company before taking over in Delhi by the Government of India were governed by the Gwalior State Civil Service Rules. The Gwalior Civil Service Rules provided: “CHAPTER 1-A7 (a) (1) Every employee has a right to seek retirement from service after attaining the age of 55 years.(2) the Government also has authority not to allow any employee to continue in employment after attaining the age of 55 years and order his retirement.(3) In case an employee does not seek retirement from service after attaining the age of 55 years or the Government also does not order his retirement from service, than he shall continue in service till he attains the age of 60 years.(4) Every employee shall compulsory retire after attaining the age of 60 years provided his service are not ordered to be terminated earlier.(5) An employee who retires under these rules shall be entitled for Pension or Gratuity to which he is entitled according to the rules.Note (1): These Rules will not apply to the Police Personnels.Note (2): The concerned Departments shall initiate retirement proceeding against those employees who have attained age of 60 years at the time of enforcement of the rules but immediate action shall be taken for release of Pension or Gratuity in case of those who have become entitled for Gratuity or Pension and till pension or gratuity is not sanctioned they shall not be retired. In future this procedure shall be followed that action for Pension or Gratuity shall be initiated one year in advance to which he is entitled at the age of 60 years in case of an employee who retires at the age of 60 years so that there shall be no delay in retiring him after attaining the age of 60 years”. 6. The above rules it indicates clearly an employee who does not seek retirement from service after attaining the age of 55 years or if the Government does not order his retirement at that age, shall continue in service till he attains the age of 60 years. It is also (indicated with unmistakably terms that every employee shall compulsorily retire after attaining the age of 60 years provided his services are not ordered to be terminated earlier. In other words the age of retirement was 60 years. Option however was there for the employee to seek voluntary retirement at 55 years and for the Government to compulsorily retire him at 55. 7. Counsel for the respondent does not dispute the above provisions. He, however, argued that the age of 55 years at which an employee could be asked to retire has been raised by the Corporation from 55 to 58 and if an employee has been retired at 58 it was not prejudicial to him since he could have been retired in his erstwhile company only at 55. Our attention was invited to Service Regulations of the Corporation providing for these matters. The argument is attractive but on a deeper consideration we find little merit in it. If the Delhi Transport Corporation had exercised its right to retire the petitioners on attaining the age of 58 years, the argument would have been tenable. But that was not done by the Corporation. The Corporation retired the petitioners on the ground that they attained the age of superannuation at 58 years. It is so stated by the notice (Annex. E) dated January 2, 1986 issued by the Deputy Personnel Officer-I to Hari Shankar Gaur––Petitioner in W.P. No. 1244/86. The notice reads: “DELHI TRANSPORT CORPORATIONA GOVERNMENT OF INDIA UNDERTAKINGI.P. ESTATE: NEW DELHINo. PLD-IX (PF)/85/128 Dt. 2.1.1986Shri Hari Shankar Gaur s/o Shri M.L. Gaur, Office Supdt. will attain the age of superannuation i.e. 58 years on 31-1-1986. He shall, therefore, retire from the service of this Corporation with effect from 31.1.1986 in accordance with clause 10 of the D.R.T. Act (Conditions of Appointment and Service) Regulations, 1952 read with office order No. PLD/2479, dated 7.3.1974. He may avail earned leave due to him prior to 31.1.1986, if he desires”. We are told similar notices were issued to other employees as well. That means the Corporation was under the impression that the petitioners have no right to continue beyond the age of 58 years.8. We are, therefore, of the opinion that the persons who originally were in the employment of GNIT and were employed prior to October 28, 1946 and who continued in service till May 14, 1948 and onwards will have the right to remain in service upto 60 years unless the option to retire was exercised by the person or by the Corporation at 55 years.
### Response:
1
### Explanation:
We are told similar notices were issued to other employees as well. That means the Corporation was under the impression that the petitioners have no right to continue beyond the age of 58 years.8. We are, therefore, of the opinion that the persons who originally were in the employment of GNIT and were employed prior to October 28, 1946 and who continued in service till May 14, 1948 and onwards will have the right to remain in service upto 60 years unless the option to retire was exercised by the person or by the Corporation at 55 years.
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Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi | for recording of administration expenses of the Fund is required to be kept under Para 49. Para. 52 deals with the investment of monies belonging to employees provident fund and provides that such monies be deposited in the Reserve Bank or the State Bank of India or in such other scheduled banks as may be approved by the Central Government from time to time or be invested subject to the directions as the Central Government may from time to time give in securities mentioned or referred to in Clauses (a) to (d) of Section20 of the Indian Trusts Act, 1882. All expenses incurred in respect of, and loss, if any, arising from, any investment shall be charged to the Fund. Para 53 provides that the Fund not including the administration account shall be, except With the previous sanction of the Central Government, be expended for any purpose other than the payment of the sums standing to the credit of individual member of the Fund or to their nominees or heirs or legal representatives in accordance with the provisions of the scheme. All expenses, relating to the administration of the Fund including those incurred on Regional Committee are to be made from the Fund in terms of para 54 of the scheme. Similarly all expenses of administration of Fund including the fees and allowances of the trustees of the Central Board and salaries, leave and joining time allowance, travelling and compensatory allowances, gratuities and compassionate allowances, pensions, contributions to provident fund and other benefit funds instituted for the officers and employees of the Central Board, the cost of audit of the accounts, legal expenses and cost of stationery and forms incurred in respect of Central Board, cost and all expenses incurred in connection with the construction of office and staff quarters shall be met from the Administration Account of the Fund. The member of the scheme is entitled only to the interest determined as per para 60. Chapter VIII deals with nominations, payments and withdrawals from the Fund. 11. We cannot accept the argument that the Regional Provident Fund Commissioner, being Central Government, cannot be held to be rendering service within the meaning and scheme of the Act. The Regional Provident Fund Commissioner, under the Act and the scheme discharges statutory functions for running the scheme. It has not, in any way, been delegated with the sovereign powers of the State so as to hold it as a Central Government being not the authority rendering the service under the Act. The Commissioner is a separate and distinct entity. It cannot legally claim that the facilities provided by the scheme were not service or that the benefits under the scheme being provided were free of charge. The definition of consumer under the Act includes not only the person who hires the services for consideration gut also the beneficiary, for whose benefit such services are hired. Even if it is held that administrative charges are paid by the Central Government and no part of it is paid by the employee, the services of the Provident Fund Commissioner in running the scheme shall be deemed to have been availed of for consideration by the Central Government for the benefit of employees who would be treated as beneficiary within the meaning of that word used in the definition of consumer. This Court in Spring Meadown Hospital & Another v. Haijol Ahluwalia through K. S. Ahluwalia and Another, 1998 SC 1577 , to which one of us (SAGHIR AHMAD, J) was a party has already held that the consumer means a person who hires or avails of any services and includes any beneficiary of such service other than the person who hires or avails the services. The Act gives comprehensive definition of consumer who is the principal beneficiary of the legislation but at the same time in view of the comprehensive definition of the term consumer even a member of the family of such consumer was held to be having the status of consumer. In an action by any such member of the family of beneficiary of the service it will not be open for a trader to take a stand that there was no privity of contract. In this regard this Court specifically held : In the present case, we are concerned with clause (ii) of Section 2(1)(d). In the said clause a consumer would mean a person who hires or avails of any services and includes any beneficiary of such services other than the person who hires or avails of the services. When a young child is taken to a hospital by his parents and the child is treated by the doctor, the parents would come within the definition of consumer having hired the services and the young child would also become a consumer under the inclusive definition being a beneficiary of such services. The definition clause being wide enough to include not only the person who hires the services but also the beneficiary of such services which beneficiary is other than the person who hires the services, the conclusion is irresistible that both the parents of the child as well as the child would be consumer within the meaning of Section 2(1)(d)(ii) of the Act and as such can claim compensation under the Act. * 12. A perusal of the scheme clearly and unambiguously indicate that it is a service within the meaning of Section 2(1)(o) and the member a consumer within the meaning of Section 2(1)(d) of the Act. It is, therefore, without any substance to urge that the services under the scheme are rendered free of charge and, therefore, the scheme is not a service under the Act. Both the State as well as National Commission have dealt with this aspect in detail and rightly came to the conclusion that the Act was applicable in the case of the scheme on the round that its member was a consumer under section 2(1)(d) and the scheme was a service under Section (1)(o). | 0[ds]A perusal of the scheme unambiguously shows that it is for consideration which is applicable to all those factories and establishments covered under the Act and the scheme who are required to become a member of the Fund under the scheme. Para 26 provides that every connection with in any work of the factory or other establishment to which the scheme applies other than an excluded employee, shall be entitled and required to become a member of the Fund from the date the said para comes into force in such factor or the establishment. The scheme provides for the Board of Trustees, the appointment, power of Commissioner and other staff of Board of Trustees, membership of the Fund, contribution, etc. Chapter V deals with contribution. The employer who is otherwise not a member of the scheme is obliged to contribute under the scheme at the rates specified therein of the basic wages, dearness allowance including cash value of any food concession and repairing allowances, if any, payable to each employee to whom the scheme applies. The contribution of the employee has to be equal to the contribution payable by the employer in respect of such employee. The words in respect of are significant as they indicate the liability of the employer to pay his part of the contribution in consideration of the employee. But for the employment of the employee there is no obligation upon the employer to pay his part of the contribution to the scheme. The administrative charges, as required to be paid under para 30 of the, scheme are also paid for consideration of the employee being the member of the scheme. It is immaterial as to whether such charges are deducted actually from the wages of the employee or paid by his employer in respect of the employee-member of the scheme working for such employer. The administrative charges are further required to be determined having regard to the basic wages, the dearness allowance, retaining allowance, if any, and cash value of food concessions admissible thereon for the time being payable to the employee. If the contention of the appellant is accepted that as no part of the administrative charges are deducted from the actual wages of the employee, he cannot be deemed to be Wiring the services of scheme, the consequences of such an interpretation shall Frustrate the object of the Act and the scheme as in that event no obligation can be cast upon the employer to pay contributions which are equal to the contribution payable by the employee along with the administrative charges. The scheme has to be given such an interpretation which serves the purpose intended to be achieved by it keeping in view the objects of the Act. The administrative charges are in lieu of the membership of the employee and for the services rendered under the scheme. It cannot be held that even though the employee is the member of the scheme, yet the employer would only be deemed to be a consumer for having made payments of the administrative charges. Admittedly, no service is rendered to the employer under the scheme which is framed for the benefit of the employee under Sections 5, 6 and 7 of the Act. Chapter VII provides for administration of the Fund, Accounts and Audit. A separate account called Central Administration Account for recording of administration expenses of the Fund is required to be kept under Para 49. Para. 52 deals with the investment of monies belonging to employees provident fund and provides that such monies be deposited in the Reserve Bank or the State Bank of India or in such other scheduled banks as may be approved by the Central Government from time to time or be invested subject to the directions as the Central Government may from time to time give in securities mentioned or referred to in Clauses (a) to (d) of Section20 ofthe Indian Trusts Act, 1882. All expenses incurred in respect of, and loss, if any, arising from, any investment shall be charged to the Fund. Para 53 provides that the Fund not including the administration account shall be, except With the previous sanction of the Central Government, be expended for any purpose other than the payment of the sums standing to the credit of individual member of the Fund or to their nominees or heirs or legal representatives in accordance with the provisions of the scheme. All expenses, relating to the administration of the Fund including those incurred on Regional Committee are to be made from the Fund in terms of para 54 of the scheme. Similarly all expenses of administration of Fund including the fees and allowances of the trustees of the Central Board and salaries, leave and joining time allowance, travelling and compensatory allowances, gratuities and compassionate allowances, pensions, contributions to provident fund and other benefit funds instituted for the officers and employees of the Central Board, the cost of audit of the accounts, legal expenses and cost of stationery and forms incurred in respect of Central Board, cost and all expenses incurred in connection with the construction of office and staff quarters shall be met from the Administration Account of the Fund. The member of the scheme is entitled only to the interest determined as per para 60. Chapter VIII deals with nominations, payments and withdrawals from the Fund11. We cannot accept the argument that the Regional Provident Fund Commissioner, being Central Government, cannot be held to be rendering service within the meaning and scheme of the Act. The Regional Provident Fund Commissioner, under the Act and the scheme discharges statutory functions for running the scheme. It has not, in any way, been delegated with the sovereign powers of the State so as to hold it as a Central Government being not the authority rendering the service under the Act. The Commissioner is a separate and distinct entity. It cannot legally claim that the facilities provided by the scheme were not service or that the benefits under the scheme being provided were free of charge12. A perusal of the scheme clearly and unambiguously indicate that it is a service within the meaning of Section 2(1)(o) and the member a consumer within the meaning of Section 2(1)(d) of the Act. It is, therefore, without any substance to urge that the services under the scheme are rendered free of charge and, therefore, the scheme is not a service under the Act. Both the State as well as National Commission have dealt with this aspect in detail and rightly came to the conclusion that the Act was applicable in the case of the scheme on the round that its member was a consumer under section 2(1)(d) and the scheme was a service under Section (1)(o) | 0 | 5,685 | 1,242 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
for recording of administration expenses of the Fund is required to be kept under Para 49. Para. 52 deals with the investment of monies belonging to employees provident fund and provides that such monies be deposited in the Reserve Bank or the State Bank of India or in such other scheduled banks as may be approved by the Central Government from time to time or be invested subject to the directions as the Central Government may from time to time give in securities mentioned or referred to in Clauses (a) to (d) of Section20 of the Indian Trusts Act, 1882. All expenses incurred in respect of, and loss, if any, arising from, any investment shall be charged to the Fund. Para 53 provides that the Fund not including the administration account shall be, except With the previous sanction of the Central Government, be expended for any purpose other than the payment of the sums standing to the credit of individual member of the Fund or to their nominees or heirs or legal representatives in accordance with the provisions of the scheme. All expenses, relating to the administration of the Fund including those incurred on Regional Committee are to be made from the Fund in terms of para 54 of the scheme. Similarly all expenses of administration of Fund including the fees and allowances of the trustees of the Central Board and salaries, leave and joining time allowance, travelling and compensatory allowances, gratuities and compassionate allowances, pensions, contributions to provident fund and other benefit funds instituted for the officers and employees of the Central Board, the cost of audit of the accounts, legal expenses and cost of stationery and forms incurred in respect of Central Board, cost and all expenses incurred in connection with the construction of office and staff quarters shall be met from the Administration Account of the Fund. The member of the scheme is entitled only to the interest determined as per para 60. Chapter VIII deals with nominations, payments and withdrawals from the Fund. 11. We cannot accept the argument that the Regional Provident Fund Commissioner, being Central Government, cannot be held to be rendering service within the meaning and scheme of the Act. The Regional Provident Fund Commissioner, under the Act and the scheme discharges statutory functions for running the scheme. It has not, in any way, been delegated with the sovereign powers of the State so as to hold it as a Central Government being not the authority rendering the service under the Act. The Commissioner is a separate and distinct entity. It cannot legally claim that the facilities provided by the scheme were not service or that the benefits under the scheme being provided were free of charge. The definition of consumer under the Act includes not only the person who hires the services for consideration gut also the beneficiary, for whose benefit such services are hired. Even if it is held that administrative charges are paid by the Central Government and no part of it is paid by the employee, the services of the Provident Fund Commissioner in running the scheme shall be deemed to have been availed of for consideration by the Central Government for the benefit of employees who would be treated as beneficiary within the meaning of that word used in the definition of consumer. This Court in Spring Meadown Hospital & Another v. Haijol Ahluwalia through K. S. Ahluwalia and Another, 1998 SC 1577 , to which one of us (SAGHIR AHMAD, J) was a party has already held that the consumer means a person who hires or avails of any services and includes any beneficiary of such service other than the person who hires or avails the services. The Act gives comprehensive definition of consumer who is the principal beneficiary of the legislation but at the same time in view of the comprehensive definition of the term consumer even a member of the family of such consumer was held to be having the status of consumer. In an action by any such member of the family of beneficiary of the service it will not be open for a trader to take a stand that there was no privity of contract. In this regard this Court specifically held : In the present case, we are concerned with clause (ii) of Section 2(1)(d). In the said clause a consumer would mean a person who hires or avails of any services and includes any beneficiary of such services other than the person who hires or avails of the services. When a young child is taken to a hospital by his parents and the child is treated by the doctor, the parents would come within the definition of consumer having hired the services and the young child would also become a consumer under the inclusive definition being a beneficiary of such services. The definition clause being wide enough to include not only the person who hires the services but also the beneficiary of such services which beneficiary is other than the person who hires the services, the conclusion is irresistible that both the parents of the child as well as the child would be consumer within the meaning of Section 2(1)(d)(ii) of the Act and as such can claim compensation under the Act. * 12. A perusal of the scheme clearly and unambiguously indicate that it is a service within the meaning of Section 2(1)(o) and the member a consumer within the meaning of Section 2(1)(d) of the Act. It is, therefore, without any substance to urge that the services under the scheme are rendered free of charge and, therefore, the scheme is not a service under the Act. Both the State as well as National Commission have dealt with this aspect in detail and rightly came to the conclusion that the Act was applicable in the case of the scheme on the round that its member was a consumer under section 2(1)(d) and the scheme was a service under Section (1)(o).
### Response:
0
### Explanation:
employer who is otherwise not a member of the scheme is obliged to contribute under the scheme at the rates specified therein of the basic wages, dearness allowance including cash value of any food concession and repairing allowances, if any, payable to each employee to whom the scheme applies. The contribution of the employee has to be equal to the contribution payable by the employer in respect of such employee. The words in respect of are significant as they indicate the liability of the employer to pay his part of the contribution in consideration of the employee. But for the employment of the employee there is no obligation upon the employer to pay his part of the contribution to the scheme. The administrative charges, as required to be paid under para 30 of the, scheme are also paid for consideration of the employee being the member of the scheme. It is immaterial as to whether such charges are deducted actually from the wages of the employee or paid by his employer in respect of the employee-member of the scheme working for such employer. The administrative charges are further required to be determined having regard to the basic wages, the dearness allowance, retaining allowance, if any, and cash value of food concessions admissible thereon for the time being payable to the employee. If the contention of the appellant is accepted that as no part of the administrative charges are deducted from the actual wages of the employee, he cannot be deemed to be Wiring the services of scheme, the consequences of such an interpretation shall Frustrate the object of the Act and the scheme as in that event no obligation can be cast upon the employer to pay contributions which are equal to the contribution payable by the employee along with the administrative charges. The scheme has to be given such an interpretation which serves the purpose intended to be achieved by it keeping in view the objects of the Act. The administrative charges are in lieu of the membership of the employee and for the services rendered under the scheme. It cannot be held that even though the employee is the member of the scheme, yet the employer would only be deemed to be a consumer for having made payments of the administrative charges. Admittedly, no service is rendered to the employer under the scheme which is framed for the benefit of the employee under Sections 5, 6 and 7 of the Act. Chapter VII provides for administration of the Fund, Accounts and Audit. A separate account called Central Administration Account for recording of administration expenses of the Fund is required to be kept under Para 49. Para. 52 deals with the investment of monies belonging to employees provident fund and provides that such monies be deposited in the Reserve Bank or the State Bank of India or in such other scheduled banks as may be approved by the Central Government from time to time or be invested subject to the directions as the Central Government may from time to time give in securities mentioned or referred to in Clauses (a) to (d) of Section20 ofthe Indian Trusts Act, 1882. All expenses incurred in respect of, and loss, if any, arising from, any investment shall be charged to the Fund. Para 53 provides that the Fund not including the administration account shall be, except With the previous sanction of the Central Government, be expended for any purpose other than the payment of the sums standing to the credit of individual member of the Fund or to their nominees or heirs or legal representatives in accordance with the provisions of the scheme. All expenses, relating to the administration of the Fund including those incurred on Regional Committee are to be made from the Fund in terms of para 54 of the scheme. Similarly all expenses of administration of Fund including the fees and allowances of the trustees of the Central Board and salaries, leave and joining time allowance, travelling and compensatory allowances, gratuities and compassionate allowances, pensions, contributions to provident fund and other benefit funds instituted for the officers and employees of the Central Board, the cost of audit of the accounts, legal expenses and cost of stationery and forms incurred in respect of Central Board, cost and all expenses incurred in connection with the construction of office and staff quarters shall be met from the Administration Account of the Fund. The member of the scheme is entitled only to the interest determined as per para 60. Chapter VIII deals with nominations, payments and withdrawals from the Fund11. We cannot accept the argument that the Regional Provident Fund Commissioner, being Central Government, cannot be held to be rendering service within the meaning and scheme of the Act. The Regional Provident Fund Commissioner, under the Act and the scheme discharges statutory functions for running the scheme. It has not, in any way, been delegated with the sovereign powers of the State so as to hold it as a Central Government being not the authority rendering the service under the Act. The Commissioner is a separate and distinct entity. It cannot legally claim that the facilities provided by the scheme were not service or that the benefits under the scheme being provided were free of charge12. A perusal of the scheme clearly and unambiguously indicate that it is a service within the meaning of Section 2(1)(o) and the member a consumer within the meaning of Section 2(1)(d) of the Act. It is, therefore, without any substance to urge that the services under the scheme are rendered free of charge and, therefore, the scheme is not a service under the Act. Both the State as well as National Commission have dealt with this aspect in detail and rightly came to the conclusion that the Act was applicable in the case of the scheme on the round that its member was a consumer under section 2(1)(d) and the scheme was a service under Section (1)(o)
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M/S. A. C. Estates Vs. M/S. Serajuddin & Co. And Another | Act. 10. This takes us to the order of August 9, 1956. We have already set out S. 16(3) and there is no doubt that it consists of two parts. Under the first part, the Controller has to declare by order that the tenants interest in so much of the premises as has been sublet has ceased and the sub-tenant has become a tenant directly under the landlord from the date of the order. The second part gives power to the Controller to fix rents payable by the tenant and such sub-tenant to the landlord from the date of the order. It may be that both orders under the two parts may be passed on the same date; but it appears what usually happens is that the Controller first declares that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord, and thereafter proceeds to fix rent under the second part after taking such further evidence as he considers necessary. Even so, the order under the first part declaring that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord must be treated as final so far as the Controller is concerned and it cannot be a mere interlocutory order, which could be rescinded by the Controller while he is taking steps to fix the rent as provided in the second part of S. 16(3). In this connection our attention is drawn to the decision of the Calcutta High Court in Anil Kumar Mukherjee v. Malin Kumar Mazumdar, (1960) 64 Cal WN 938, where it was held with reference to S. 29 of the Act that the words "final order" there mean the order making the declaration and fixing the rent under S. 16(3) or the order dismissing the application under S. 16(3). We do not propose to consider whether Mukherjees case, (1960) 64 Cal WN 938 is correctly decided. Assuming it to be correct, what it lays down inter alia is that an order under the first part of S. 16(3) merely making a declaration without the further order fixing rent under the second part thereof is not appealable as a final order under S. 29. But what we are concerned with here is whether it was open to the Controller after he had made the order declaring the sub-tenant a direct tenant under the landlord to set aside that order subsequently while proceeding to fix rent on the basis of something which transpired after that order had been passed. We are of opinion that an order like that passed on August 9, 1956, must be taken to be final insofar as it declares the tenancy of the tenant of the first degree to have ceased and declares the sub-tenant to be the direct tenant of the landlord, so far as the Controller is concerned. After having made such a declaration it is not open to the Controller (while proceeding to fix rent under the second part of that section) on some ground which supervenes after the date of the order to rescind it. Our attention in this connection is drawn to S. 29(5) of the Act which gives power to the Controller to review his orders on the conditions laid down under Order XLVII of the Code of Civil Procedure. But this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which existed at the date of the order and there can be no review of an order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event (see Rajah Kotagiri Venkata Subbamma Rao v. Raja Vellanki Venkatarama Rao, (1900) ILR 24 Mad 1 (PC)) Section 29(5) further gives power to the Controller to act under S. 151 or S. 152 of the Code of Civil Procedure. Section 152 has no application in the present case for there is no clerical or arithmetical mistake here. Nor can the Controller in our opinion set aside an order which was right when it was made, under S. 151 of the Code of Civil Procedure as there is no question in such circumstances of subserving the ends of justice or preventing the abuse of the process of the Court. We are therefore of opinion that the Controller had no power to set aside the order that had been made on August 9, 1956 for it was right when it was made. The view taken by the High Court in this connection is correct. 11. It is equally clear that when the Controller passed the order on February 11, 1957, dismissing the application under S. 16(3) that order was appealable under S. 29(1), for it was undoubtedly a final order within the meaning of S. 29(1) and the respondent would be entitled to appeal there-from. 12. Finally there is nothing in the contention of the appellant that S. 16(3) would not apply because the tenant had been ejected on August 22, 1956 and thereafter the sub-tenant could not claim the benefit of S. 16(3).In the present case the benefit of S. 16(3) was given to the tenant not after August 22, 1956, but before that date i.e. on August 9, 1956. That order so far as it went was final and was not open to review or cancellation by the Controller who had thereafter only to fix the rent under the second part of S. 16(3). While going on with the proceeding for fixation of rent the Controller could not set aside the order already made under the first part of S. 16(3) on August 9, 1956 and insofar as he did so, he acted without jurisdiction. 13. The Appeal Court was therefore right in setting aside the order of the Controller and the High Court was equally right in dismissing the application by the appellant except as to fixation of rent. | 0[ds]8. We are of opinion that the appeal must fail. There is a clear finding of the Controller that the respondent was inducted as a sub-tenant by Po in June, 1954. At that time, the appellant had not even given notice to Po determining his tenancy. It was only in July, 1954 that notice was given to Po determining the tenancy as from the end of August, 1954. Therefore, the respondent become a sub-tenant of the tenancy which Po held under the appellant9. The next question is whether the respondent was entitled to the benefit of the Act which came into force on March 31, 1956. On that date a suit was pending against Po based on the notice given to him in July 1954 determining his tenancy.The argument on behalf of the appellant is that as Pos tenancy had been determined by the end of August, 1954 by virtue of the notice referred to above, the respondent was no longer sub-tenant on March 31, 1956 as the tenancy of the tenant of the first degree had itself come to an end. This in our opinion is not correct. This word "tenant" is defined in S. 2(h) of the Act to include any person continuing in possession after the termination of his tenancy but shall not include any person against whom any decree or order for eviction had been made by a Court of competent jurisdiction. In view of this inclusive definition of the word "tenant in the Act Po would continue to be a tenant under the Act though his tenancy had been determined by notice and he ceased to be a tenant only on August 22, 1956, when the decree for ejectment was passed against him. It is true that the definitions in S. 2 are subject to anything being repugnant in the subject or context. But we see nothing repugnant in the subject or context of S. 16(3) to persuade us to hold that the definition of tenant in S. 2(h) would not apply to a case under S. 16(3).The Act is a measure for the protection of tenants and sub-tenants and should not be so interpreted as to take away the protection which it intends to give to them. We are therefore of opinion that Po continued to be a tenant upto August 22, 1956 and therefore the respondent continued to be a sub-tenant after the coming into force of the Act10. This takes us to the order of August 9, 1956. We have already set out S. 16(3) and there is no doubt that it consists of two parts. Under the first part, the Controller has to declare by order that the tenants interest in so much of the premises as has been sublet has ceased and the sub-tenant has become a tenant directly under the landlord from the date of the order. The second part gives power to the Controller to fix rents payable by the tenant and such sub-tenant to the landlord from the date of the order. It may be that both orders under the two parts may be passed on the same date; but it appears what usually happens is that the Controller first declares that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord, and thereafter proceeds to fix rent under the second part after taking such further evidence as he considers necessary. Even so, the order under the first part declaring that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord must be treated as final so far as the Controller is concerned and it cannot be a mere interlocutory order, which could be rescinded by the Controller while he is taking steps to fix the rent as provided in the second part of S. 16(3). In this connection our attention is drawn to the decision of the Calcutta High Court in Anil Kumar Mukherjee v. Malin Kumar Mazumdar, (1960) 64 Cal WN 938, where it was held with reference to S. 29 of the Act that the words "final order" there mean the order making the declaration and fixing the rent under S. 16(3) or the order dismissing the application under S. 16(3). We do not propose to consider whether Mukherjees case, (1960) 64 Cal WN 938 is correctly decided. Assuming it to be correct, what it lays down inter alia is that an order under the first part of S. 16(3) merely making a declaration without the further order fixing rent under the second part thereof is not appealable as a final order under S. 29. But what we are concerned with here is whether it was open to the Controller after he had made the order declaring the sub-tenant a direct tenant under the landlord to set aside that order subsequently while proceeding to fix rent on the basis of something which transpired after that order had been passed. We are of opinion that an order like that passed on August 9, 1956, must be taken to be final insofar as it declares the tenancy of the tenant of the first degree to have ceased and declares the sub-tenant to be the direct tenant of the landlord, so far as the Controller is concerned. After having made such a declaration it is not open to the Controller (while proceeding to fix rent under the second part of that section) on some ground which supervenes after the date of the order to rescind it. Our attention in this connection is drawn to S. 29(5) of the Act which gives power to the Controller to review his orders on the conditions laid down under Order XLVII of theCode of Civil Procedure. But this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which existed at the date of the order and there can be no review of an order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event (see Rajah Kotagiri Venkata Subbamma Rao v. Raja Vellanki Venkatarama Rao, (1900) ILR 24 Mad 1 (PC)) Section 29(5) further gives power to the Controller to act under S. 151 or S. 152 of theCode of Civil Procedure. Section 152 has no application in the present case for there is no clerical or arithmetical mistake here. Nor can the Controller in our opinion set aside an order which was right when it was made, under S. 151 of theCode of Civil Procedure as there is no question in such circumstances of subserving the ends of justice or preventing the abuse of the process of the Court. We are therefore of opinion that the Controller had no power to set aside the order that had been made on August 9, 1956 for it was right when it was made. The view taken by the High Court in this connection is correct11. It is equally clear that when the Controller passed the order on February 11, 1957, dismissing the application under S. 16(3) that order was appealable under S. 29(1), for it was undoubtedly a final order within the meaning of S. 29(1) and the respondent would be entitled to appeal there-from12. Finally there is nothing in the contention of the appellant that S. 16(3) would not apply because the tenant had been ejected on August 22, 1956 and thereafter the sub-tenant could not claim the benefit of S. 16(3).In the present case the benefit of S. 16(3) was given to the tenant not after August 22, 1956, but before that date i.e. on August 9, 1956. That order so far as it went was final and was not open to review or cancellation by the Controller who had thereafter only to fix the rent under the second part of S. 16(3). While going on with the proceeding for fixation of rent the Controller could not set aside the order already made under the first part of S. 16(3) on August 9, 1956 and insofar as he did so, he acted without jurisdiction. | 0 | 3,296 | 1,521 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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Act. 10. This takes us to the order of August 9, 1956. We have already set out S. 16(3) and there is no doubt that it consists of two parts. Under the first part, the Controller has to declare by order that the tenants interest in so much of the premises as has been sublet has ceased and the sub-tenant has become a tenant directly under the landlord from the date of the order. The second part gives power to the Controller to fix rents payable by the tenant and such sub-tenant to the landlord from the date of the order. It may be that both orders under the two parts may be passed on the same date; but it appears what usually happens is that the Controller first declares that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord, and thereafter proceeds to fix rent under the second part after taking such further evidence as he considers necessary. Even so, the order under the first part declaring that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord must be treated as final so far as the Controller is concerned and it cannot be a mere interlocutory order, which could be rescinded by the Controller while he is taking steps to fix the rent as provided in the second part of S. 16(3). In this connection our attention is drawn to the decision of the Calcutta High Court in Anil Kumar Mukherjee v. Malin Kumar Mazumdar, (1960) 64 Cal WN 938, where it was held with reference to S. 29 of the Act that the words "final order" there mean the order making the declaration and fixing the rent under S. 16(3) or the order dismissing the application under S. 16(3). We do not propose to consider whether Mukherjees case, (1960) 64 Cal WN 938 is correctly decided. Assuming it to be correct, what it lays down inter alia is that an order under the first part of S. 16(3) merely making a declaration without the further order fixing rent under the second part thereof is not appealable as a final order under S. 29. But what we are concerned with here is whether it was open to the Controller after he had made the order declaring the sub-tenant a direct tenant under the landlord to set aside that order subsequently while proceeding to fix rent on the basis of something which transpired after that order had been passed. We are of opinion that an order like that passed on August 9, 1956, must be taken to be final insofar as it declares the tenancy of the tenant of the first degree to have ceased and declares the sub-tenant to be the direct tenant of the landlord, so far as the Controller is concerned. After having made such a declaration it is not open to the Controller (while proceeding to fix rent under the second part of that section) on some ground which supervenes after the date of the order to rescind it. Our attention in this connection is drawn to S. 29(5) of the Act which gives power to the Controller to review his orders on the conditions laid down under Order XLVII of the Code of Civil Procedure. But this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which existed at the date of the order and there can be no review of an order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event (see Rajah Kotagiri Venkata Subbamma Rao v. Raja Vellanki Venkatarama Rao, (1900) ILR 24 Mad 1 (PC)) Section 29(5) further gives power to the Controller to act under S. 151 or S. 152 of the Code of Civil Procedure. Section 152 has no application in the present case for there is no clerical or arithmetical mistake here. Nor can the Controller in our opinion set aside an order which was right when it was made, under S. 151 of the Code of Civil Procedure as there is no question in such circumstances of subserving the ends of justice or preventing the abuse of the process of the Court. We are therefore of opinion that the Controller had no power to set aside the order that had been made on August 9, 1956 for it was right when it was made. The view taken by the High Court in this connection is correct. 11. It is equally clear that when the Controller passed the order on February 11, 1957, dismissing the application under S. 16(3) that order was appealable under S. 29(1), for it was undoubtedly a final order within the meaning of S. 29(1) and the respondent would be entitled to appeal there-from. 12. Finally there is nothing in the contention of the appellant that S. 16(3) would not apply because the tenant had been ejected on August 22, 1956 and thereafter the sub-tenant could not claim the benefit of S. 16(3).In the present case the benefit of S. 16(3) was given to the tenant not after August 22, 1956, but before that date i.e. on August 9, 1956. That order so far as it went was final and was not open to review or cancellation by the Controller who had thereafter only to fix the rent under the second part of S. 16(3). While going on with the proceeding for fixation of rent the Controller could not set aside the order already made under the first part of S. 16(3) on August 9, 1956 and insofar as he did so, he acted without jurisdiction. 13. The Appeal Court was therefore right in setting aside the order of the Controller and the High Court was equally right in dismissing the application by the appellant except as to fixation of rent.
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which it intends to give to them. We are therefore of opinion that Po continued to be a tenant upto August 22, 1956 and therefore the respondent continued to be a sub-tenant after the coming into force of the Act10. This takes us to the order of August 9, 1956. We have already set out S. 16(3) and there is no doubt that it consists of two parts. Under the first part, the Controller has to declare by order that the tenants interest in so much of the premises as has been sublet has ceased and the sub-tenant has become a tenant directly under the landlord from the date of the order. The second part gives power to the Controller to fix rents payable by the tenant and such sub-tenant to the landlord from the date of the order. It may be that both orders under the two parts may be passed on the same date; but it appears what usually happens is that the Controller first declares that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord, and thereafter proceeds to fix rent under the second part after taking such further evidence as he considers necessary. Even so, the order under the first part declaring that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord must be treated as final so far as the Controller is concerned and it cannot be a mere interlocutory order, which could be rescinded by the Controller while he is taking steps to fix the rent as provided in the second part of S. 16(3). In this connection our attention is drawn to the decision of the Calcutta High Court in Anil Kumar Mukherjee v. Malin Kumar Mazumdar, (1960) 64 Cal WN 938, where it was held with reference to S. 29 of the Act that the words "final order" there mean the order making the declaration and fixing the rent under S. 16(3) or the order dismissing the application under S. 16(3). We do not propose to consider whether Mukherjees case, (1960) 64 Cal WN 938 is correctly decided. Assuming it to be correct, what it lays down inter alia is that an order under the first part of S. 16(3) merely making a declaration without the further order fixing rent under the second part thereof is not appealable as a final order under S. 29. But what we are concerned with here is whether it was open to the Controller after he had made the order declaring the sub-tenant a direct tenant under the landlord to set aside that order subsequently while proceeding to fix rent on the basis of something which transpired after that order had been passed. We are of opinion that an order like that passed on August 9, 1956, must be taken to be final insofar as it declares the tenancy of the tenant of the first degree to have ceased and declares the sub-tenant to be the direct tenant of the landlord, so far as the Controller is concerned. After having made such a declaration it is not open to the Controller (while proceeding to fix rent under the second part of that section) on some ground which supervenes after the date of the order to rescind it. Our attention in this connection is drawn to S. 29(5) of the Act which gives power to the Controller to review his orders on the conditions laid down under Order XLVII of theCode of Civil Procedure. But this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which existed at the date of the order and there can be no review of an order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event (see Rajah Kotagiri Venkata Subbamma Rao v. Raja Vellanki Venkatarama Rao, (1900) ILR 24 Mad 1 (PC)) Section 29(5) further gives power to the Controller to act under S. 151 or S. 152 of theCode of Civil Procedure. Section 152 has no application in the present case for there is no clerical or arithmetical mistake here. Nor can the Controller in our opinion set aside an order which was right when it was made, under S. 151 of theCode of Civil Procedure as there is no question in such circumstances of subserving the ends of justice or preventing the abuse of the process of the Court. We are therefore of opinion that the Controller had no power to set aside the order that had been made on August 9, 1956 for it was right when it was made. The view taken by the High Court in this connection is correct11. It is equally clear that when the Controller passed the order on February 11, 1957, dismissing the application under S. 16(3) that order was appealable under S. 29(1), for it was undoubtedly a final order within the meaning of S. 29(1) and the respondent would be entitled to appeal there-from12. Finally there is nothing in the contention of the appellant that S. 16(3) would not apply because the tenant had been ejected on August 22, 1956 and thereafter the sub-tenant could not claim the benefit of S. 16(3).In the present case the benefit of S. 16(3) was given to the tenant not after August 22, 1956, but before that date i.e. on August 9, 1956. That order so far as it went was final and was not open to review or cancellation by the Controller who had thereafter only to fix the rent under the second part of S. 16(3). While going on with the proceeding for fixation of rent the Controller could not set aside the order already made under the first part of S. 16(3) on August 9, 1956 and insofar as he did so, he acted without jurisdiction.
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Kakumanu Peda Subbayya Andanother Vs. Kakumanu Akkamma And Another | to them. But that is only when the family is joint, and so where there is disruption of the joint status, there can be no question of the right of a karta of a joint family as such to act on behalf of the minor, and on the authorities, a partition entered into on his behalf by a person other than his father or mother will be valid, provided that person acts in the interests of and for the benefit of the minor. 13. If, under the law, it is competent to a person other than the father or mother of a minor to act on his behalf, and enter into a partition out of Court so as to bind him, is there any reason why that person should not be competent when he finds that the interests of the minor would best be served by a division and that the adult coparceners are not willing to effect a partition, to file a suit for that purpose of behalf of the minor, and why if the Court finds that the action is beneficial to the minor, the institution of the suit should not be held to be a proper declaration on behalf of the minor to become divided so as to cause a severance in status?In our judgment, when the law permits a person interested in a minor to act on his behalf, any declaration to become divided made by him on behalf of the minor must be held to result in severance in status, subject only to the Court deciding whether it is beneficial to the minor; and a suit instituted on his behalf if found to be beneficial, must be held to bring about a division in status.That was the view taken in a Full Bench decision of the Madras High Court in ILR 57 Mad 95 : (AIR 1933 Mad 890 ) (D) wherein Ramesam, J., stated the position thus :"The instances show that the object of the issue whether the suit was for the benefit of the minor is really to remove the obstacle to the passing of the decree. It is no objection to the maintainability of the suit .... In my opinion therefore in all such cases the severance is effected from the date of the suit conditional on the Court being able to find that the suit when filed was for the benefit of the minor." The same view has been taken in ILR 1939 Bom 256 : (AIR 1939 Bom 169 ) (E) and ILR (1947) Nag 848 : (AIR 1948 Nag 1) (F) and we agree with these decisions. 14. On the conclusion reached above that it is the action of the person acting on behalf of a minor that brings about a division in status, it is necessary to examine what the nature of the jurisdiction is which the Courts exercise when they decide whether a suit is for the benefit of a minor or not.Now, the theory is that the Sovereign as parents patriae has the power, and is indeed under a duty to protect the interests of minors, and that function has devolved on the Courts. In the discharge of that function, therefore, they have the power to control all proceedings before them wherein minors are concerned. They can appoint their own officers to protect their interests, and stay proceedings if they consider that they are vexatious.In Halsburys Laws of England, Vol. XXI, page 216, para 478, it is stated as follows :"Infants have always been treated as specially under the protection of the Sovereign, who, as parents patriae, had the charge of the persons not capable of looking after themselves. This jurisdiction over infants was formerely delegated to and exercised by the Lord Chancellor; through him it passed to the Court of Chancery, and is now vested in the Chancery Division of the High Court of Justice. It is independent of the question whether the infant has any property or not." It is in the exercise of this jurisdiction that Courts require to be satisfied that the next friend of a minor has in instituting a suit for partition acted in his interest. When, therefore, the Court decides that the suit has been instituted for the benefit of the minor and decrees partition, it does so not by virtue of any rule, special or peculiar to Hindu law but in the exercise of a jurisdiction which is inherent in it and which extends over all minors. The true effect of a decision of a Court that the action is beneficial to the minor is not to create in the minor proprio vigore a right which he did not possess before but to recognise the right which had accrued to him when the person acting on his behalf instituted the action. Thus, what brings about the severance in status is the action of the next friend in instituting the suit, the decree of the Court merely rendering it effective by deciding that what the next friend has done is for the benefit of the minor. 15. It remains to consider one other argument advanced on behalf of the appellants. It was urged that the cause of action for a suit for partition by a minor was one personal to him, and that on his death before hearing, the suit must abate on the principle of the maxim, actio personalis moritur cum persona.But that maxim has application only when the action is one for damages for a personal wrong, and as a suit for partition is a suit for property, the rule in question has no application to it.That was the view taken in ILR 57 Mad 95 : (AIR 1933 Mad 890 ) (FB) (D) at pages 137-138 (of ILR Mad) : (at p. 907 of AIR) and in ILR (1947) Nag 848 : (AIR 1948 Nag 1) (F) at page 871 (of ILR Nag) : (at p. 10 of AIR) and we are in agreement with it. | 0[ds]5. On the first question, the contention of the appellants is that is the pure question of fact whether the institution of a suit is for the benefit of a minor or not, and that a finding of the Courts below on that question is not liable to be interfered with in second appeal. But it must be observed that the finding of the Subordinate Judge was only that as the impugned sale and purchases were made before the minor plaintiff was born, no cause of action for partition could be founded by him thereon, and that, in our opinion, is a clear misdirection3. Even in the Court of Appeal, the defendants persisted in pressing this claim, and further maintained that the joint family had debts and both the Courts below had concurrently held against them on these issues.These are materials from which it could rightly be concluded that it was not to the interest of the minor to continue joint with the defendants, and that it would be beneficial to him to decree partition. In holding that as the transactions in question had taken place prior to his birth the minor could not rely on them as furnishing a cause of action, the Courts below had misunderstood the real point for determination, and that was a ground on which the High Court could interfere with their finding in second appeal. We accept the finding of the High Court that the suit was instituted for the benefit of the minor plaintiff and in that view we proceed to consider the second question raised by the learned Attorney-General - and that is the main question that was pressed before us -whether the suit for partition abated by reason of the death of the minor before it was heard and decided9. The law being thus settled as regards coparceners who are sui juris, the question is whether it operates differently when the coparcener who institutes the suit for partition is a minor acting through his next friend.Now, the Hindu Law makes no distinction between a major coparcener and a minor coparcener, so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major. Consistently with this position, it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the plaintiff is a minor the Court has to be satisfied that the action has been instituted for his benefitIt is in the exercise of this jurisdiction that Courts require to be satisfied that the next friend of a minor has in instituting a suit for partition acted in his interest. When, therefore, the Court decides that the suit has been instituted for the benefit of the minor and decrees partition, it does so not by virtue of any rule, special or peculiar to Hindu law but in the exercise of a jurisdiction which is inherent in it and which extends over all minors. The true effect of a decision of a Court that the action is beneficial to the minor is not to create in the minor proprio vigore a right which he did not possess before but to recognise the right which had accrued to him when the person acting on his behalf instituted the action. Thus, what brings about the severance in status is the action of the next friend in instituting the suit, the decree of the Court merely rendering it effective by deciding that what the next friend has done is for the benefit of the minorBut that maxim has application only when the action is one for damages for a personal wrong, and as a suit for partition is a suit for property, the rule in question has no application to it.That was the view taken in ILR 57 Mad 95 : (AIR 1933 Mad 890 ) (FB) (D) at pages 137-138 (of ILR Mad) : (at p. 907 of AIR) and in ILR (1947) Nag 848 : (AIR 1948 Nag 1) (F) at page 871 (of ILR Nag) : (at p. 10 of AIR) and we are in agreement with it. | 0 | 5,595 | 786 | ### Instruction:
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to them. But that is only when the family is joint, and so where there is disruption of the joint status, there can be no question of the right of a karta of a joint family as such to act on behalf of the minor, and on the authorities, a partition entered into on his behalf by a person other than his father or mother will be valid, provided that person acts in the interests of and for the benefit of the minor. 13. If, under the law, it is competent to a person other than the father or mother of a minor to act on his behalf, and enter into a partition out of Court so as to bind him, is there any reason why that person should not be competent when he finds that the interests of the minor would best be served by a division and that the adult coparceners are not willing to effect a partition, to file a suit for that purpose of behalf of the minor, and why if the Court finds that the action is beneficial to the minor, the institution of the suit should not be held to be a proper declaration on behalf of the minor to become divided so as to cause a severance in status?In our judgment, when the law permits a person interested in a minor to act on his behalf, any declaration to become divided made by him on behalf of the minor must be held to result in severance in status, subject only to the Court deciding whether it is beneficial to the minor; and a suit instituted on his behalf if found to be beneficial, must be held to bring about a division in status.That was the view taken in a Full Bench decision of the Madras High Court in ILR 57 Mad 95 : (AIR 1933 Mad 890 ) (D) wherein Ramesam, J., stated the position thus :"The instances show that the object of the issue whether the suit was for the benefit of the minor is really to remove the obstacle to the passing of the decree. It is no objection to the maintainability of the suit .... In my opinion therefore in all such cases the severance is effected from the date of the suit conditional on the Court being able to find that the suit when filed was for the benefit of the minor." The same view has been taken in ILR 1939 Bom 256 : (AIR 1939 Bom 169 ) (E) and ILR (1947) Nag 848 : (AIR 1948 Nag 1) (F) and we agree with these decisions. 14. On the conclusion reached above that it is the action of the person acting on behalf of a minor that brings about a division in status, it is necessary to examine what the nature of the jurisdiction is which the Courts exercise when they decide whether a suit is for the benefit of a minor or not.Now, the theory is that the Sovereign as parents patriae has the power, and is indeed under a duty to protect the interests of minors, and that function has devolved on the Courts. In the discharge of that function, therefore, they have the power to control all proceedings before them wherein minors are concerned. They can appoint their own officers to protect their interests, and stay proceedings if they consider that they are vexatious.In Halsburys Laws of England, Vol. XXI, page 216, para 478, it is stated as follows :"Infants have always been treated as specially under the protection of the Sovereign, who, as parents patriae, had the charge of the persons not capable of looking after themselves. This jurisdiction over infants was formerely delegated to and exercised by the Lord Chancellor; through him it passed to the Court of Chancery, and is now vested in the Chancery Division of the High Court of Justice. It is independent of the question whether the infant has any property or not." It is in the exercise of this jurisdiction that Courts require to be satisfied that the next friend of a minor has in instituting a suit for partition acted in his interest. When, therefore, the Court decides that the suit has been instituted for the benefit of the minor and decrees partition, it does so not by virtue of any rule, special or peculiar to Hindu law but in the exercise of a jurisdiction which is inherent in it and which extends over all minors. The true effect of a decision of a Court that the action is beneficial to the minor is not to create in the minor proprio vigore a right which he did not possess before but to recognise the right which had accrued to him when the person acting on his behalf instituted the action. Thus, what brings about the severance in status is the action of the next friend in instituting the suit, the decree of the Court merely rendering it effective by deciding that what the next friend has done is for the benefit of the minor. 15. It remains to consider one other argument advanced on behalf of the appellants. It was urged that the cause of action for a suit for partition by a minor was one personal to him, and that on his death before hearing, the suit must abate on the principle of the maxim, actio personalis moritur cum persona.But that maxim has application only when the action is one for damages for a personal wrong, and as a suit for partition is a suit for property, the rule in question has no application to it.That was the view taken in ILR 57 Mad 95 : (AIR 1933 Mad 890 ) (FB) (D) at pages 137-138 (of ILR Mad) : (at p. 907 of AIR) and in ILR (1947) Nag 848 : (AIR 1948 Nag 1) (F) at page 871 (of ILR Nag) : (at p. 10 of AIR) and we are in agreement with it.
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5. On the first question, the contention of the appellants is that is the pure question of fact whether the institution of a suit is for the benefit of a minor or not, and that a finding of the Courts below on that question is not liable to be interfered with in second appeal. But it must be observed that the finding of the Subordinate Judge was only that as the impugned sale and purchases were made before the minor plaintiff was born, no cause of action for partition could be founded by him thereon, and that, in our opinion, is a clear misdirection3. Even in the Court of Appeal, the defendants persisted in pressing this claim, and further maintained that the joint family had debts and both the Courts below had concurrently held against them on these issues.These are materials from which it could rightly be concluded that it was not to the interest of the minor to continue joint with the defendants, and that it would be beneficial to him to decree partition. In holding that as the transactions in question had taken place prior to his birth the minor could not rely on them as furnishing a cause of action, the Courts below had misunderstood the real point for determination, and that was a ground on which the High Court could interfere with their finding in second appeal. We accept the finding of the High Court that the suit was instituted for the benefit of the minor plaintiff and in that view we proceed to consider the second question raised by the learned Attorney-General - and that is the main question that was pressed before us -whether the suit for partition abated by reason of the death of the minor before it was heard and decided9. The law being thus settled as regards coparceners who are sui juris, the question is whether it operates differently when the coparcener who institutes the suit for partition is a minor acting through his next friend.Now, the Hindu Law makes no distinction between a major coparcener and a minor coparcener, so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major. Consistently with this position, it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the plaintiff is a minor the Court has to be satisfied that the action has been instituted for his benefitIt is in the exercise of this jurisdiction that Courts require to be satisfied that the next friend of a minor has in instituting a suit for partition acted in his interest. When, therefore, the Court decides that the suit has been instituted for the benefit of the minor and decrees partition, it does so not by virtue of any rule, special or peculiar to Hindu law but in the exercise of a jurisdiction which is inherent in it and which extends over all minors. The true effect of a decision of a Court that the action is beneficial to the minor is not to create in the minor proprio vigore a right which he did not possess before but to recognise the right which had accrued to him when the person acting on his behalf instituted the action. Thus, what brings about the severance in status is the action of the next friend in instituting the suit, the decree of the Court merely rendering it effective by deciding that what the next friend has done is for the benefit of the minorBut that maxim has application only when the action is one for damages for a personal wrong, and as a suit for partition is a suit for property, the rule in question has no application to it.That was the view taken in ILR 57 Mad 95 : (AIR 1933 Mad 890 ) (FB) (D) at pages 137-138 (of ILR Mad) : (at p. 907 of AIR) and in ILR (1947) Nag 848 : (AIR 1948 Nag 1) (F) at page 871 (of ILR Nag) : (at p. 10 of AIR) and we are in agreement with it.
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NEMAI CHANDRA DEY (DEAD) THROUGH LRS Vs. PRASANTA CHANDRA (DEAD) THROUGH LRS. & ANR | noticed, the scheme of the Constitution, inter alia, is that the findings of fact are ordinarily to attain finality at the hands of the Court of Appeal and it is only on substantial questions of law that the High Court can interfere in the findings of the first Appellate Court. Therefore, apart from reiterating that it is a valuable right of the party which is at stake, it would not be conducive to the interest of administration of justice that findings of fact are rendered without due care and application of mind to the evidence and the law governing the parties. We say for the reason that any breach of duty by the first appellate Court in this regard has far reaching consequences on the administration of justice. 8. The case which is not decided in the manner contemplated under law, can finally culminate in the litigants approaching the highest Court and invoking power under Article 136 of the Constitution of India. Power under Article 136 is intended to be used rarely. This is an extraordinary jurisdiction. 9. The founding fathers contemplated that Courts at each level discharge their duties as contemplated under law. That means that the first Appellate Court will reappreciate the evidence, consider the arguments and apply the law and arrive at findings. Only then limiting of the jurisdiction of the High Court to only cases where substantial question of law arises would be justified. Approach to this Court under Article 136 could be on rare occasions only. We say nothing more except to reiterate that it is the bounden duty of the first appellate Court to deal with appeals within the confines of law and keeping in mind the principles which have been enumerated under Order XLI Rule 31 and various judgments of this Court. 10. Being dissatisfied, the appellants carried the matter to the High Court in second appeal. On one occasion, the High Court dismissed the appeal on account of the absence of the appellants and under Order XLI Rule 11. This is impugned. Thereafter the matter was taken up and then followed the next impugned judgment. In the said impugned judgment, the High Court proceeded to find that the judgment of the trial Court was elaborate and detailed and thereafter, the Court was of the view that the contentions of the plaintiff was inevitable and the Court below was correct in arriving at the findings returned. The appellants was not able to show any perversity in the impugned judgments. The five substantial questions of law did not appeal to the Court. The appellants did not show any material to establish that the findings of fact returned by the trial Court and affirmed in appeal was perverse. And so far as burden of proof was concerned, the trial Court had not acted irregularly in arriving at the findings. Therefore, the Court did not find it appropriate to recall the order. 11. When this Court initially heard the matter, on 25.08.2014, it issued notice and also granted stay of further proceeding of execution. Thereafter, it would appear that by order dated 16.12.2015, the interim order granted earlier was vacated. But by the same order, the Court granted leave and it is thereafter, the matter came before us. 12. We have heard the learned counsel for the appellants and also the learned counsel for the respondents. 13. Learned counsel for the appellants would point out that the case of the appellants has not been considered by the appellate Court, the point which we have already noted. No doubt, learned counsel for the respondents supported the order of the High Court. 14. As we have noticed, the High court has proceeded on the basis that the consideration by the first appellate Court to the findings of the trial Court constituted concurrent findings as if this is a case where the first appellate Court has discharged its duties and given its approval to the trial Court findings. One could have understood the High Court so holding in a case where the first appellate Court had considered the appeal in the manner provided by law and as established by long line of judgments. We are clear in mind that this is indeed one such case where by virtue of the first appellate Court having failed to discharge its duties, in the facts of this case, remand to the first appellate Court is warranted. This is so for the reason that the suit was contested. Parties led elaborate evidence. What is taken in defence was the validity of the two registered gift deeds, which according to the first defendant were executed lawfully. In this connection there is a contention raised by the appellants that the plaintiff has executed a number of documents by way of sale deeds. The plaintiff, according to the appellants was, in fact, literate, though a pardahnashin lady. The first defendant has a case that it was a suit which was laid on the strength of the influence wielded by the nephew of the plaintiffs-sister in whose house the plaintiff was staying for some time. The scribe has been examined as a witness. The attesting witness has been examined. We may notice in this regard, no doubt that in respect of a pardahnashin lady, this Court has followed the view taken by the Privy Council and reiterated the principles in Mst. Kharbuja Kuer v. Jangbahadur Rai and Others AIR 1963 1203. In this case, no doubt, the plaintiff has given evidence that she executed the gift deeds in question on the basis of her being under the impression that power of attorney was executed. There were other items of evidence which were before the Court also. We do not wish to say anything more in view of the order of remand that we are passing. We are of the view that the interest of justice do require a remand to the first appellate Court in the nature of the order which has been passed by the Courts. | 1[ds]14. As we have noticed, the High court has proceeded on the basis that the consideration by the first appellate Court to the findings of the trial Court constituted concurrent findings as if this is a case where the first appellate Court has discharged its duties and given its approval to the trial Court findings. One could have understood the High Court so holding in a case where the first appellate Court had considered the appeal in the manner provided by law and as established by long line of judgments. We are clear in mind that this is indeed one such case where by virtue of the first appellate Court having failed to discharge its duties, in the facts of this case, remand to the first appellate Court is warranted.This is so for the reason that the suit was contested. Parties led elaborate evidence. What is taken in defence was the validity of the two registered gift deeds, which according to the first defendant were executed lawfully. In this connection there is a contention raised by the appellants that the plaintiff has executed a number of documents by way of sale deeds. The plaintiff, according to the appellants was, in fact, literate, though a pardahnashin lady. The first defendant has a case that it was a suit which was laid on the strength of the influence wielded by the nephew of the plaintiffs-sister in whose house the plaintiff was staying for some time. The scribe has been examined as a witness. The attesting witness has been examined. We may notice in this regard, no doubt that in respect of a pardahnashin lady, this Court has followed the view taken by the Privy Council and reiterated the principles in Mst. Kharbuja Kuer v. Jangbahadur Rai and Others AIR 1963 1203. In this case, no doubt, the plaintiff has given evidence that she executed the gift deeds in question on the basis of her being under the impression that power of attorney was executed. There were other items of evidence which were before the Court also. We do not wish to say anything more in view of the order of remand that we are passing. We are of the view that the interest of justice do require a remand to the first appellate Court in the nature of the order which has been passed by the Courts. | 1 | 2,227 | 428 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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noticed, the scheme of the Constitution, inter alia, is that the findings of fact are ordinarily to attain finality at the hands of the Court of Appeal and it is only on substantial questions of law that the High Court can interfere in the findings of the first Appellate Court. Therefore, apart from reiterating that it is a valuable right of the party which is at stake, it would not be conducive to the interest of administration of justice that findings of fact are rendered without due care and application of mind to the evidence and the law governing the parties. We say for the reason that any breach of duty by the first appellate Court in this regard has far reaching consequences on the administration of justice. 8. The case which is not decided in the manner contemplated under law, can finally culminate in the litigants approaching the highest Court and invoking power under Article 136 of the Constitution of India. Power under Article 136 is intended to be used rarely. This is an extraordinary jurisdiction. 9. The founding fathers contemplated that Courts at each level discharge their duties as contemplated under law. That means that the first Appellate Court will reappreciate the evidence, consider the arguments and apply the law and arrive at findings. Only then limiting of the jurisdiction of the High Court to only cases where substantial question of law arises would be justified. Approach to this Court under Article 136 could be on rare occasions only. We say nothing more except to reiterate that it is the bounden duty of the first appellate Court to deal with appeals within the confines of law and keeping in mind the principles which have been enumerated under Order XLI Rule 31 and various judgments of this Court. 10. Being dissatisfied, the appellants carried the matter to the High Court in second appeal. On one occasion, the High Court dismissed the appeal on account of the absence of the appellants and under Order XLI Rule 11. This is impugned. Thereafter the matter was taken up and then followed the next impugned judgment. In the said impugned judgment, the High Court proceeded to find that the judgment of the trial Court was elaborate and detailed and thereafter, the Court was of the view that the contentions of the plaintiff was inevitable and the Court below was correct in arriving at the findings returned. The appellants was not able to show any perversity in the impugned judgments. The five substantial questions of law did not appeal to the Court. The appellants did not show any material to establish that the findings of fact returned by the trial Court and affirmed in appeal was perverse. And so far as burden of proof was concerned, the trial Court had not acted irregularly in arriving at the findings. Therefore, the Court did not find it appropriate to recall the order. 11. When this Court initially heard the matter, on 25.08.2014, it issued notice and also granted stay of further proceeding of execution. Thereafter, it would appear that by order dated 16.12.2015, the interim order granted earlier was vacated. But by the same order, the Court granted leave and it is thereafter, the matter came before us. 12. We have heard the learned counsel for the appellants and also the learned counsel for the respondents. 13. Learned counsel for the appellants would point out that the case of the appellants has not been considered by the appellate Court, the point which we have already noted. No doubt, learned counsel for the respondents supported the order of the High Court. 14. As we have noticed, the High court has proceeded on the basis that the consideration by the first appellate Court to the findings of the trial Court constituted concurrent findings as if this is a case where the first appellate Court has discharged its duties and given its approval to the trial Court findings. One could have understood the High Court so holding in a case where the first appellate Court had considered the appeal in the manner provided by law and as established by long line of judgments. We are clear in mind that this is indeed one such case where by virtue of the first appellate Court having failed to discharge its duties, in the facts of this case, remand to the first appellate Court is warranted. This is so for the reason that the suit was contested. Parties led elaborate evidence. What is taken in defence was the validity of the two registered gift deeds, which according to the first defendant were executed lawfully. In this connection there is a contention raised by the appellants that the plaintiff has executed a number of documents by way of sale deeds. The plaintiff, according to the appellants was, in fact, literate, though a pardahnashin lady. The first defendant has a case that it was a suit which was laid on the strength of the influence wielded by the nephew of the plaintiffs-sister in whose house the plaintiff was staying for some time. The scribe has been examined as a witness. The attesting witness has been examined. We may notice in this regard, no doubt that in respect of a pardahnashin lady, this Court has followed the view taken by the Privy Council and reiterated the principles in Mst. Kharbuja Kuer v. Jangbahadur Rai and Others AIR 1963 1203. In this case, no doubt, the plaintiff has given evidence that she executed the gift deeds in question on the basis of her being under the impression that power of attorney was executed. There were other items of evidence which were before the Court also. We do not wish to say anything more in view of the order of remand that we are passing. We are of the view that the interest of justice do require a remand to the first appellate Court in the nature of the order which has been passed by the Courts.
### Response:
1
### Explanation:
14. As we have noticed, the High court has proceeded on the basis that the consideration by the first appellate Court to the findings of the trial Court constituted concurrent findings as if this is a case where the first appellate Court has discharged its duties and given its approval to the trial Court findings. One could have understood the High Court so holding in a case where the first appellate Court had considered the appeal in the manner provided by law and as established by long line of judgments. We are clear in mind that this is indeed one such case where by virtue of the first appellate Court having failed to discharge its duties, in the facts of this case, remand to the first appellate Court is warranted.This is so for the reason that the suit was contested. Parties led elaborate evidence. What is taken in defence was the validity of the two registered gift deeds, which according to the first defendant were executed lawfully. In this connection there is a contention raised by the appellants that the plaintiff has executed a number of documents by way of sale deeds. The plaintiff, according to the appellants was, in fact, literate, though a pardahnashin lady. The first defendant has a case that it was a suit which was laid on the strength of the influence wielded by the nephew of the plaintiffs-sister in whose house the plaintiff was staying for some time. The scribe has been examined as a witness. The attesting witness has been examined. We may notice in this regard, no doubt that in respect of a pardahnashin lady, this Court has followed the view taken by the Privy Council and reiterated the principles in Mst. Kharbuja Kuer v. Jangbahadur Rai and Others AIR 1963 1203. In this case, no doubt, the plaintiff has given evidence that she executed the gift deeds in question on the basis of her being under the impression that power of attorney was executed. There were other items of evidence which were before the Court also. We do not wish to say anything more in view of the order of remand that we are passing. We are of the view that the interest of justice do require a remand to the first appellate Court in the nature of the order which has been passed by the Courts.
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Fatima Riswana Vs. State Rep. By A.C.P., Chennai | solely on the ground that the V Fast Track Court is presided over by a lady Officer. At any rate, it is contended that when the appellant brought to the notice of the court the problems faced by her in view of the transfer of the said case to a court presided over by a male Presiding Officer the High Court ought to have appreciated her point of view and allowed the petition by re-transferring the trial to IV Fast Track Court. 9. Countering the above argument of the learned counsel for the respondents contended the law officer appearing in the case had expressed their embarrassment in conducting the trial before a lady Presiding Officer and even though the Presiding Officer did not expressly record her embarrassment, it was apparent that she too wanted the case to be transferred to another court, therefore, this Court should not interfere with the order of transfer. It is also submitted on behalf of the respondents that the appellant though arrayed as a witness, for all purposes was an accused herself being involved in the illegal activities of accused No.1, hence retransferring at her request should not be permitted. It is also submitted that the High Court has erred in not granting the copies of the CDs on which the prosecution based its case.10. The last of the argument pertaining to the issuance of copies of CDs need not be gone into in this appeal because same does not arise in this appeal. We are also told that the respondents have already filed another SLP challenging that part of the High Court order by which they were denied the copies of the CDs. Therefore, we will confine ourselves to the correctness of the order of transfer of the sessions trial from V Fast Track Court to IV Fast Track Court by the High Court and the correctness of the rejection of the petition filed by the appellant for re-transferring the case to the V Fast Track Court. 11. As noted above, the sole ground on which the High Court directed the transfer of the case at the instance of the accused on 13-2-2004 was that the proceedings in the trial being one involving pornographic acts and the evidence in the case is such that it would embarrass a lady Presiding Officer. It is to be noticed herein the concerned lady Presiding Officer has not sought for or directed the transfer of the case. This is an inference drawn by the High Court merely based on the fact that the Presiding Officer is a lady. It is also to be noticed at this stage that at an earlier stage the High Court had given the choice of the transfer to the Presiding Officer herself but she did not direct or seek the transfer to the trial. In this background, we are unable to accept the correctness of the presumption drawn by the High Court.12. As contended by the learned counsel for the appellant embarrassment is a state of mind which is more individual related than related to the sex of a person. It is but natural that any decent person would be embarrassed while considering the evidence in a case like this but this embarrassment cannot be attributed to a lady Officer only. A Judicial Officer be it a female or male is expected to face this challenge when the call of duty required it. It is expected of a Judicial Officer to get over all prejudices and predilections when situation requires, hence in our considered opinion the High Court was not justified in presuming embarrassment to the Judicial Officer solely on the ground that she is a lady Officer even when the Officer concerned had not expressed any reservation in this regard. If situation requires the Presiding Officer may make such adjustments/arrangements so as to avoid viewing the CDs in the presence of male persons. This is a matter of procedure to be adopted by the Presiding Officer.13. It was nextly contended on behalf of the respondent that even the prosecution counsel and the defence counsel would feel embarrassed to appear before the court presided over by a lady Officer in a trial like this. But we think this cannot this cannot be a ground for transfer of the case. So far as the lawyers are concerned they have accepted the brief knowing very well the facts of the case , it is left to them to decide whether to continue in or not. Their embarrassment cannot be a ground for transfer of the case in a situation like this.14. It is also to be seen that the High Court has considered only the embarrassment that may be caused to the lawyers and Judges and has failed to take into consider the embarrassment that may be caused to the lady witnesses like the appellant herein who have been summoned in this case to appear before a court presided over by a male Judge to give evidence more where their own acts are part of the prosecution evidence. Therefore, if at all, there was a question of avoiding the embarrassment caused to any of the people involved in the case, in our opinion, the court ought to have considered the embarrassment that would be caused to the witness who are actually in the nature of victims while giving evidence of their acts before a male Judge. The learned counsel for the appellant, in our view, was justified in this context in relying upon the judgment of this court in the case of State of Punjab vs. Gurmit Singh (supra). 15. The argument of the learned counsel for the respondent that a retransfer at the instance of the appellant ought not to be done because the appellant herself is in a position of an accused in this trial cannot be countenanced. The fact that the respondent wants the appellant to be arrayed as an accused has no relevance for the purpose of deciding the present appeal. | 1[ds]10. The last of the argument pertaining to the issuance of copies of CDs need not be gone into in this appeal because same does not arise in this appeal. We are also told that the respondents have already filed another SLP challenging that part of the High Court order by which they were denied the copies of the CDs. Therefore, we will confine ourselves to the correctness of the order of transfer of the sessions trial from V Fast Track Court to IV Fast Track Court by the High Court and the correctness of the rejection of the petition filed by the appellant for re-transferring the case to the V Fast Track Court.As noted above, the sole ground on which the High Court directed the transfer of the case at the instance of the accused on 13-2-2004 was that the proceedings in the trial being one involving pornographic acts and the evidence in the case is such that it would embarrass a lady Presiding Officer. It is to be noticed herein the concerned lady Presiding Officer has not sought for or directed the transfer of the case. This is an inference drawn by the High Court merely based on the fact that the Presiding Officer is a lady. It is also to be noticed at this stage that at an earlier stage the High Court had given the choice of the transfer to the Presiding Officer herself but she did not direct or seek the transfer to the trial. In this background, we are unable to accept the correctness of the presumption drawn by the High Court.12. As contended by the learned counsel for the appellant embarrassment is a state of mind which is more individual related than related to the sex of a person. It is but natural that any decent person would be embarrassed while considering the evidence in a case like this but this embarrassment cannot be attributed to a lady Officer only. A Judicial Officer be it a female or male is expected to face this challenge when the call of duty required it. It is expected of a Judicial Officer to get over all prejudices and predilections when situation requires, hence in our considered opinion the High Court was not justified in presuming embarrassment to the Judicial Officer solely on the ground that she is a lady Officer even when the Officer concerned had not expressed any reservation in this regard. If situation requires the Presiding Officer may make such adjustments/arrangements so as to avoid viewing the CDs in the presence of male persons. This is a matter of procedure to be adopted by the Presiding Officer.13. It was nextly contended on behalf of the respondent that even the prosecution counsel and the defence counsel would feel embarrassed to appear before the court presided over by a lady Officer in a trial like this. But we think this cannot this cannot be a ground for transfer of the case. So far as the lawyers are concerned they have accepted the brief knowing very well the facts of the case , it is left to them to decide whether to continue in or not. Their embarrassment cannot be a ground for transfer of the case in a situation like this.14. It is also to be seen that the High Court has considered only the embarrassment that may be caused to the lawyers and Judges and has failed to take into consider the embarrassment that may be caused to the lady witnesses like the appellant herein who have been summoned in this case to appear before a court presided over by a male Judge to give evidence more where their own acts are part of the prosecution evidence. Therefore, if at all, there was a question of avoiding the embarrassment caused to any of the people involved in the case, in our opinion, the court ought to have considered the embarrassment that would be caused to the witness who are actually in the nature of victims while giving evidence of their acts before a male Judge. The learned counsel for the appellant, in our view, was justified in this context in relying upon the judgment of this court in the case of State of Punjab vs. Gurmit Singh (supra).The argument of the learned counsel for the respondent that a retransfer at the instance of the appellant ought not to be done because the appellant herself is in a position of an accused in this trial cannot be countenanced. The fact that the respondent wants the appellant to be arrayed as an accused has no relevance for the purpose of deciding the present | 1 | 2,268 | 819 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
solely on the ground that the V Fast Track Court is presided over by a lady Officer. At any rate, it is contended that when the appellant brought to the notice of the court the problems faced by her in view of the transfer of the said case to a court presided over by a male Presiding Officer the High Court ought to have appreciated her point of view and allowed the petition by re-transferring the trial to IV Fast Track Court. 9. Countering the above argument of the learned counsel for the respondents contended the law officer appearing in the case had expressed their embarrassment in conducting the trial before a lady Presiding Officer and even though the Presiding Officer did not expressly record her embarrassment, it was apparent that she too wanted the case to be transferred to another court, therefore, this Court should not interfere with the order of transfer. It is also submitted on behalf of the respondents that the appellant though arrayed as a witness, for all purposes was an accused herself being involved in the illegal activities of accused No.1, hence retransferring at her request should not be permitted. It is also submitted that the High Court has erred in not granting the copies of the CDs on which the prosecution based its case.10. The last of the argument pertaining to the issuance of copies of CDs need not be gone into in this appeal because same does not arise in this appeal. We are also told that the respondents have already filed another SLP challenging that part of the High Court order by which they were denied the copies of the CDs. Therefore, we will confine ourselves to the correctness of the order of transfer of the sessions trial from V Fast Track Court to IV Fast Track Court by the High Court and the correctness of the rejection of the petition filed by the appellant for re-transferring the case to the V Fast Track Court. 11. As noted above, the sole ground on which the High Court directed the transfer of the case at the instance of the accused on 13-2-2004 was that the proceedings in the trial being one involving pornographic acts and the evidence in the case is such that it would embarrass a lady Presiding Officer. It is to be noticed herein the concerned lady Presiding Officer has not sought for or directed the transfer of the case. This is an inference drawn by the High Court merely based on the fact that the Presiding Officer is a lady. It is also to be noticed at this stage that at an earlier stage the High Court had given the choice of the transfer to the Presiding Officer herself but she did not direct or seek the transfer to the trial. In this background, we are unable to accept the correctness of the presumption drawn by the High Court.12. As contended by the learned counsel for the appellant embarrassment is a state of mind which is more individual related than related to the sex of a person. It is but natural that any decent person would be embarrassed while considering the evidence in a case like this but this embarrassment cannot be attributed to a lady Officer only. A Judicial Officer be it a female or male is expected to face this challenge when the call of duty required it. It is expected of a Judicial Officer to get over all prejudices and predilections when situation requires, hence in our considered opinion the High Court was not justified in presuming embarrassment to the Judicial Officer solely on the ground that she is a lady Officer even when the Officer concerned had not expressed any reservation in this regard. If situation requires the Presiding Officer may make such adjustments/arrangements so as to avoid viewing the CDs in the presence of male persons. This is a matter of procedure to be adopted by the Presiding Officer.13. It was nextly contended on behalf of the respondent that even the prosecution counsel and the defence counsel would feel embarrassed to appear before the court presided over by a lady Officer in a trial like this. But we think this cannot this cannot be a ground for transfer of the case. So far as the lawyers are concerned they have accepted the brief knowing very well the facts of the case , it is left to them to decide whether to continue in or not. Their embarrassment cannot be a ground for transfer of the case in a situation like this.14. It is also to be seen that the High Court has considered only the embarrassment that may be caused to the lawyers and Judges and has failed to take into consider the embarrassment that may be caused to the lady witnesses like the appellant herein who have been summoned in this case to appear before a court presided over by a male Judge to give evidence more where their own acts are part of the prosecution evidence. Therefore, if at all, there was a question of avoiding the embarrassment caused to any of the people involved in the case, in our opinion, the court ought to have considered the embarrassment that would be caused to the witness who are actually in the nature of victims while giving evidence of their acts before a male Judge. The learned counsel for the appellant, in our view, was justified in this context in relying upon the judgment of this court in the case of State of Punjab vs. Gurmit Singh (supra). 15. The argument of the learned counsel for the respondent that a retransfer at the instance of the appellant ought not to be done because the appellant herself is in a position of an accused in this trial cannot be countenanced. The fact that the respondent wants the appellant to be arrayed as an accused has no relevance for the purpose of deciding the present appeal.
### Response:
1
### Explanation:
10. The last of the argument pertaining to the issuance of copies of CDs need not be gone into in this appeal because same does not arise in this appeal. We are also told that the respondents have already filed another SLP challenging that part of the High Court order by which they were denied the copies of the CDs. Therefore, we will confine ourselves to the correctness of the order of transfer of the sessions trial from V Fast Track Court to IV Fast Track Court by the High Court and the correctness of the rejection of the petition filed by the appellant for re-transferring the case to the V Fast Track Court.As noted above, the sole ground on which the High Court directed the transfer of the case at the instance of the accused on 13-2-2004 was that the proceedings in the trial being one involving pornographic acts and the evidence in the case is such that it would embarrass a lady Presiding Officer. It is to be noticed herein the concerned lady Presiding Officer has not sought for or directed the transfer of the case. This is an inference drawn by the High Court merely based on the fact that the Presiding Officer is a lady. It is also to be noticed at this stage that at an earlier stage the High Court had given the choice of the transfer to the Presiding Officer herself but she did not direct or seek the transfer to the trial. In this background, we are unable to accept the correctness of the presumption drawn by the High Court.12. As contended by the learned counsel for the appellant embarrassment is a state of mind which is more individual related than related to the sex of a person. It is but natural that any decent person would be embarrassed while considering the evidence in a case like this but this embarrassment cannot be attributed to a lady Officer only. A Judicial Officer be it a female or male is expected to face this challenge when the call of duty required it. It is expected of a Judicial Officer to get over all prejudices and predilections when situation requires, hence in our considered opinion the High Court was not justified in presuming embarrassment to the Judicial Officer solely on the ground that she is a lady Officer even when the Officer concerned had not expressed any reservation in this regard. If situation requires the Presiding Officer may make such adjustments/arrangements so as to avoid viewing the CDs in the presence of male persons. This is a matter of procedure to be adopted by the Presiding Officer.13. It was nextly contended on behalf of the respondent that even the prosecution counsel and the defence counsel would feel embarrassed to appear before the court presided over by a lady Officer in a trial like this. But we think this cannot this cannot be a ground for transfer of the case. So far as the lawyers are concerned they have accepted the brief knowing very well the facts of the case , it is left to them to decide whether to continue in or not. Their embarrassment cannot be a ground for transfer of the case in a situation like this.14. It is also to be seen that the High Court has considered only the embarrassment that may be caused to the lawyers and Judges and has failed to take into consider the embarrassment that may be caused to the lady witnesses like the appellant herein who have been summoned in this case to appear before a court presided over by a male Judge to give evidence more where their own acts are part of the prosecution evidence. Therefore, if at all, there was a question of avoiding the embarrassment caused to any of the people involved in the case, in our opinion, the court ought to have considered the embarrassment that would be caused to the witness who are actually in the nature of victims while giving evidence of their acts before a male Judge. The learned counsel for the appellant, in our view, was justified in this context in relying upon the judgment of this court in the case of State of Punjab vs. Gurmit Singh (supra).The argument of the learned counsel for the respondent that a retransfer at the instance of the appellant ought not to be done because the appellant herself is in a position of an accused in this trial cannot be countenanced. The fact that the respondent wants the appellant to be arrayed as an accused has no relevance for the purpose of deciding the present
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Hindustan Construction Company, Limited Vs. G. K. Patankar and Another | Gupta, J.1. Following a settlement with the workers employed in their different branches, the appellant, Hindustan Construction Co. Ltd., (referred to hereinafter as the company), paid to these workers an amount equivalent to 6% of their total earnings for the financial year ending 31st July, 1971, in addition to bonus at 4% of the annual earnings. Paragraph 4 of the memorandum of settlement reads :"It was decided that although the workers were entitled to 4% bonus under the Bonus Act, it will be necessary to afford some relief to the workers. It was agreed that over and above 4% bonus, the Hindustan Construction Company will pay additional amount of 6% ex gratia to the workers for year 1970-71 in the pay packet of June, 1971."The workmen employed in the head office of the company at Bombay demanded that they should also be paid on amount equivalent to 6% of their total earnings for the financial year ending 31st July, 1971 in addition to bonus at 4% of the annual earnings as had been paid to the other employees of the company. The Company by its notice, dated March 14, 1971 had notified that the workmen at the head office would be paid bonus at 4% of their total earnings for the year 1970-71. The dispute arising on this demand by the head office employees was referred for adjudication to the Industrial Tribunal, Maharashtra, Bombay. The Tribunal agreeing with the contention of the workers that what was said to the employees at the branch office as ex gratia amount, was in fact nothing but additional bonus for the year 1970-71 held that the demand was legal and proper and directed payment of bonus to the workers at the head office at the rate at which it had been paid to the workers at the branch offices. The company challenged the award by filling a writ petition in the Bombay High Court. The High court rejected the petition summarily with the following observation :"All contentions of the Petitioner-company are technical. However, substantial justice has been done in payment to head office workmen in accordance with the application of the principal of uniformity.Hence this does not appear to be matter for interference."2. This appeal by special leave is directed against the above order of the High Court.3. Mr. B. Sen, learned counsel for the appellant contended that in the face of the clear statement in the memorandum of settlement between the company and the Federation representing the workers at the branches that what was being paid to them was an ex gratia relief, the Tribunal was wrong in holding that the amount paid was an additional bonus. It was submitted that the Tribunal acted without jurisdiction in extending the benefit under the settlement to the workmen at the head office who were not parties to the settlement. Mr. Sen further pointed out that these workmen had no legal right to claim any additional amount as bonus in view of the admitted fact that in the relevant accounting year the company had suffered a loss.It was argued that the Payment of Bonus Act, 1965 was a complete code in regard to the subject of bonus and in terms of S.10 of the Act the workers were not entitled to any amount as bonus beyond entitled to any amount as bonus beyond the minimum 4% in the year in question.4. We do not, however, consider it necessary to decide whether the Tribunal was right in treating the additional payment made to the workers at the branches as bonus as, in our opinion, the award has not occasioned a failure of justice and the High Court was not wrong in declining to interfere on that grounds. It appears that the company had spent about Rs. 20 lakhs in giving this additional relief to the workers at the branches numbering about 13, 000. The workmen at the head office are much fewer in number and the affidavit-in-opposition filed in this Court on their behalf states that extending the benefit to them would cost the company only Rs. 1 lakh more. The High Court found that extension of the benefit to the workers at the head office justified on the principle of uniformity which in this case serves to maintain industrial peace. In these circumstances if the High Court refused to interfere on the ground that substantial justice had been done, we find no reason to hold that the High Court had exercised its discretion arbitrarily. This Court has refused to interfere in the similar circumstances in more that one case, though the order complained might suffer from some informity. (See Shree Balvantrai Chimanlal Trivedi v. M. N. Nagarshna) C.A. No. 38 of 1958, decided in 29th October, 1959 and A. M. Allison v. B. L. Sen, [1957-I L.L.J. 472]; (1957) S.C.R. 359. | 0[ds]It appears that the company had spent about Rs. 20 lakhs in giving this additional relief to the workers at the branches numbering about 13, 000. The workmen at the head office are much fewer in number and thefiled in this Court on their behalf states that extending the benefit to them would cost the company only Rs. 1 lakh more. The High Court found that extension of the benefit to the workers at the head office justified on the principle of uniformity which in this case serves to maintain industrial peace. In these circumstances if the High Court refused to interfere on the ground that substantial justice had been done, we find no reason to hold that the High Court had exercised its discretion arbitrarily. This Court has refused to interfere in the similar circumstances in more that one case, though the order complained might suffer from some informity. (See Shree Balvantrai Chimanlal Trivedi v. M. N. Nagarshna) C.A. No. 38 of 1958, decided in 29th October, 1959 and A. M. Allison v. B. L. Sen,L.L.J. 472]; (1957) S.C.R. 359. | 0 | 889 | 210 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
Gupta, J.1. Following a settlement with the workers employed in their different branches, the appellant, Hindustan Construction Co. Ltd., (referred to hereinafter as the company), paid to these workers an amount equivalent to 6% of their total earnings for the financial year ending 31st July, 1971, in addition to bonus at 4% of the annual earnings. Paragraph 4 of the memorandum of settlement reads :"It was decided that although the workers were entitled to 4% bonus under the Bonus Act, it will be necessary to afford some relief to the workers. It was agreed that over and above 4% bonus, the Hindustan Construction Company will pay additional amount of 6% ex gratia to the workers for year 1970-71 in the pay packet of June, 1971."The workmen employed in the head office of the company at Bombay demanded that they should also be paid on amount equivalent to 6% of their total earnings for the financial year ending 31st July, 1971 in addition to bonus at 4% of the annual earnings as had been paid to the other employees of the company. The Company by its notice, dated March 14, 1971 had notified that the workmen at the head office would be paid bonus at 4% of their total earnings for the year 1970-71. The dispute arising on this demand by the head office employees was referred for adjudication to the Industrial Tribunal, Maharashtra, Bombay. The Tribunal agreeing with the contention of the workers that what was said to the employees at the branch office as ex gratia amount, was in fact nothing but additional bonus for the year 1970-71 held that the demand was legal and proper and directed payment of bonus to the workers at the head office at the rate at which it had been paid to the workers at the branch offices. The company challenged the award by filling a writ petition in the Bombay High Court. The High court rejected the petition summarily with the following observation :"All contentions of the Petitioner-company are technical. However, substantial justice has been done in payment to head office workmen in accordance with the application of the principal of uniformity.Hence this does not appear to be matter for interference."2. This appeal by special leave is directed against the above order of the High Court.3. Mr. B. Sen, learned counsel for the appellant contended that in the face of the clear statement in the memorandum of settlement between the company and the Federation representing the workers at the branches that what was being paid to them was an ex gratia relief, the Tribunal was wrong in holding that the amount paid was an additional bonus. It was submitted that the Tribunal acted without jurisdiction in extending the benefit under the settlement to the workmen at the head office who were not parties to the settlement. Mr. Sen further pointed out that these workmen had no legal right to claim any additional amount as bonus in view of the admitted fact that in the relevant accounting year the company had suffered a loss.It was argued that the Payment of Bonus Act, 1965 was a complete code in regard to the subject of bonus and in terms of S.10 of the Act the workers were not entitled to any amount as bonus beyond entitled to any amount as bonus beyond the minimum 4% in the year in question.4. We do not, however, consider it necessary to decide whether the Tribunal was right in treating the additional payment made to the workers at the branches as bonus as, in our opinion, the award has not occasioned a failure of justice and the High Court was not wrong in declining to interfere on that grounds. It appears that the company had spent about Rs. 20 lakhs in giving this additional relief to the workers at the branches numbering about 13, 000. The workmen at the head office are much fewer in number and the affidavit-in-opposition filed in this Court on their behalf states that extending the benefit to them would cost the company only Rs. 1 lakh more. The High Court found that extension of the benefit to the workers at the head office justified on the principle of uniformity which in this case serves to maintain industrial peace. In these circumstances if the High Court refused to interfere on the ground that substantial justice had been done, we find no reason to hold that the High Court had exercised its discretion arbitrarily. This Court has refused to interfere in the similar circumstances in more that one case, though the order complained might suffer from some informity. (See Shree Balvantrai Chimanlal Trivedi v. M. N. Nagarshna) C.A. No. 38 of 1958, decided in 29th October, 1959 and A. M. Allison v. B. L. Sen, [1957-I L.L.J. 472]; (1957) S.C.R. 359.
### Response:
0
### Explanation:
It appears that the company had spent about Rs. 20 lakhs in giving this additional relief to the workers at the branches numbering about 13, 000. The workmen at the head office are much fewer in number and thefiled in this Court on their behalf states that extending the benefit to them would cost the company only Rs. 1 lakh more. The High Court found that extension of the benefit to the workers at the head office justified on the principle of uniformity which in this case serves to maintain industrial peace. In these circumstances if the High Court refused to interfere on the ground that substantial justice had been done, we find no reason to hold that the High Court had exercised its discretion arbitrarily. This Court has refused to interfere in the similar circumstances in more that one case, though the order complained might suffer from some informity. (See Shree Balvantrai Chimanlal Trivedi v. M. N. Nagarshna) C.A. No. 38 of 1958, decided in 29th October, 1959 and A. M. Allison v. B. L. Sen,L.L.J. 472]; (1957) S.C.R. 359.
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S.Suresh Vs. Oriental Insurance Co.Ltd. | 1. Leave granted. 2. Challenge in this appeal is to the judgment and order dated 23rd July, 2007 rendered by a Division Bench of the Karnataka High Court, whereby the principal amount of compensation of Rs. 5,20,584/-, awarded by the Commissioner for Workmens Compensation (for short, "the Commissioner") has been reduced to Rs. 2,60,292/-. 3. The appellant, hereinafter referred to as, "the claimant", was a lorry driver. On 26th September, 2002, while driving the vehicle, he met with an accident near Ganesh Garage on Bangalore – Mangalore Road. He lost control of the vehicle and it overturned on the right side of the road. As a result of the accident, the claimant suffered serious injuries to his right leg; on the head and other parts of the body. Although he survived but ultimately his right leg had to be completely amputed just below the knee.4. The claimant filed a claim petition before the Commissioner praying for adequate compensation. It was pleaded that as he was 25 years of age; earning Rs. 4,000/- per month with daily allowance of Rs. 100/-; had suffered permanent disability, which would prevent him from engaging in the job of driver which he used to do earlier, he was entitled to adequate compensation from the Insurance Company and the owner of the lorry, respondent Nos. 1 and 2 in this appeal.5. The claim petition was contested by respondent No. 1. Respondent No. 2 was proceeded against ex-parte. On the pleadings of the parties, the Commissioner framed as many as six issues, including the issue with regard to the percentage of disability and loss of earning capacity suffered by the claimant. On this issue, the claimant adduced evidence of the Doctor, who had treated him after the accident and his photographs (Ex. P-5). The witness stated that since the claimant had suffered 93% permanent disability in his right leg, he will not be able to do the job of a driver or any other job because he will not be able to stand or walk without support. Accepting the evidence of the doctor, the Commissioner came to the conclusion that the claimants right leg up to the knee having been amputed, he has suffered a loss of 100% of his earning capacity as a driver. Inter-alia, observing that the claimant was 25 years of age at the time of the accident, by his order dated 17th January 2005, the Commissioner took his salary at Rs. 7,000/- per month (Rs. 4,000/- pr month and Rs. 100/- daily allowance) and accordingly determined the compensation payable to him at Rs. 5,20,584/-. Interest @ 12% per annum thereon from one month after the date of the accident till the date of payment was also awarded.6. Being dissatisfied with the award, the Insurance – Company preferred appeal to the High Court. As stated above, the High Court accepted the plea of the Insurance – Company that as per Schedule to the Workmens Compensation Act, 1923 (for short, "the Act"), loss of a leg on amputation amounted to a 50% reduction in the earning capacity. The High Court held that being an injury, specified in Schedule I, medical opinion could not be relied upon in terms of Section 4(1)(c)(ii) of the Act. Accordingly, applying the percentage of loss of earning capacity, as specified in Part II of Schedule I, the High Court reduced the compensation by 50%. However, award of interest thereon @12% per annum from one month after the date of accident till the date of payment was maintained. Hence the present appeal by the claimant. 7. The correctness of the impugned judgment is questioned mainly on the ground that the claimant being a lorry driver, the loss of his right leg ipso facto meant a "total disablement" as understood in terms of Section 2(1)(l) of the Act and as such the compensation payable to the claimant had to be computed on that basis. In support of the plea, reliance is placed on a four-Judge Bench decision of this Court in Pratap Narain Singh Deo Vs. Srinivas Sabata & Anr. (1976) 1 SCC 289 In that case, a carpenter had suffered amputation of his left arm from the elbow. This Court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under: "5. The expression "total disablement" has been defined in Section 2(1)(l) of the Act as follows:(1) "total disablement" means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement.It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:The injured workman in this case is carpenter by profession....By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct finding." 8. In our view, the ratio of the said judgment is squarely applicable to the facts at hand. We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act. | 1[ds]7. The correctness of the impugned judgment is questioned mainly on the ground that the claimant being a lorry driver, the loss of his right leg ipso facto meant a "total disablement" as understood in terms of Section 2(1)(l) of the Act and as such the compensation payable to the claimant had to be computed on that basis.In our view, the ratio of the said judgment is squarely applicable to the facts at hand. We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act. | 1 | 1,153 | 169 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
1. Leave granted. 2. Challenge in this appeal is to the judgment and order dated 23rd July, 2007 rendered by a Division Bench of the Karnataka High Court, whereby the principal amount of compensation of Rs. 5,20,584/-, awarded by the Commissioner for Workmens Compensation (for short, "the Commissioner") has been reduced to Rs. 2,60,292/-. 3. The appellant, hereinafter referred to as, "the claimant", was a lorry driver. On 26th September, 2002, while driving the vehicle, he met with an accident near Ganesh Garage on Bangalore – Mangalore Road. He lost control of the vehicle and it overturned on the right side of the road. As a result of the accident, the claimant suffered serious injuries to his right leg; on the head and other parts of the body. Although he survived but ultimately his right leg had to be completely amputed just below the knee.4. The claimant filed a claim petition before the Commissioner praying for adequate compensation. It was pleaded that as he was 25 years of age; earning Rs. 4,000/- per month with daily allowance of Rs. 100/-; had suffered permanent disability, which would prevent him from engaging in the job of driver which he used to do earlier, he was entitled to adequate compensation from the Insurance Company and the owner of the lorry, respondent Nos. 1 and 2 in this appeal.5. The claim petition was contested by respondent No. 1. Respondent No. 2 was proceeded against ex-parte. On the pleadings of the parties, the Commissioner framed as many as six issues, including the issue with regard to the percentage of disability and loss of earning capacity suffered by the claimant. On this issue, the claimant adduced evidence of the Doctor, who had treated him after the accident and his photographs (Ex. P-5). The witness stated that since the claimant had suffered 93% permanent disability in his right leg, he will not be able to do the job of a driver or any other job because he will not be able to stand or walk without support. Accepting the evidence of the doctor, the Commissioner came to the conclusion that the claimants right leg up to the knee having been amputed, he has suffered a loss of 100% of his earning capacity as a driver. Inter-alia, observing that the claimant was 25 years of age at the time of the accident, by his order dated 17th January 2005, the Commissioner took his salary at Rs. 7,000/- per month (Rs. 4,000/- pr month and Rs. 100/- daily allowance) and accordingly determined the compensation payable to him at Rs. 5,20,584/-. Interest @ 12% per annum thereon from one month after the date of the accident till the date of payment was also awarded.6. Being dissatisfied with the award, the Insurance – Company preferred appeal to the High Court. As stated above, the High Court accepted the plea of the Insurance – Company that as per Schedule to the Workmens Compensation Act, 1923 (for short, "the Act"), loss of a leg on amputation amounted to a 50% reduction in the earning capacity. The High Court held that being an injury, specified in Schedule I, medical opinion could not be relied upon in terms of Section 4(1)(c)(ii) of the Act. Accordingly, applying the percentage of loss of earning capacity, as specified in Part II of Schedule I, the High Court reduced the compensation by 50%. However, award of interest thereon @12% per annum from one month after the date of accident till the date of payment was maintained. Hence the present appeal by the claimant. 7. The correctness of the impugned judgment is questioned mainly on the ground that the claimant being a lorry driver, the loss of his right leg ipso facto meant a "total disablement" as understood in terms of Section 2(1)(l) of the Act and as such the compensation payable to the claimant had to be computed on that basis. In support of the plea, reliance is placed on a four-Judge Bench decision of this Court in Pratap Narain Singh Deo Vs. Srinivas Sabata & Anr. (1976) 1 SCC 289 In that case, a carpenter had suffered amputation of his left arm from the elbow. This Court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under: "5. The expression "total disablement" has been defined in Section 2(1)(l) of the Act as follows:(1) "total disablement" means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement.It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:The injured workman in this case is carpenter by profession....By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct finding." 8. In our view, the ratio of the said judgment is squarely applicable to the facts at hand. We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act.
### Response:
1
### Explanation:
7. The correctness of the impugned judgment is questioned mainly on the ground that the claimant being a lorry driver, the loss of his right leg ipso facto meant a "total disablement" as understood in terms of Section 2(1)(l) of the Act and as such the compensation payable to the claimant had to be computed on that basis.In our view, the ratio of the said judgment is squarely applicable to the facts at hand. We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act.
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M/S .Rishyashringa Jewellery Ltd. &Anr Vs. The Stock Exchange Bombay | India Vs. Allied International Products Limited, the Supreme Court has held that if the stock exchange had intimated that it would give further consideration to an application, the time limit contemplated by the section will not operate. It has also held that if any one of the stock exchanges mentioned in the prospectus approved the application for enlistment, it would mean sufficient compliance with the provisions of section 73 and the allotment made in pursuance of that prospectus would be valid.It has been felt that the decision of the Supreme Court referred to above is likely to lead to complications inasmch as the investing public as well as under-writing institutions are likely to lose the protection hitherto enjoyed by them. Hence section 73 is being amended suitably." (emphasis supplied) 9. It is, therefore, clear that the effect of the decision of this Court in Allied International Products Ltd. in this behalf was sought to be overcome by making a suitable amendment in Section 73 since it was visualised that the said decision is likely to lead to complication inasmuch as the investing public as well as under-writing institutions were likely to lose the intended protection enjoyed by them. In other words the effect of the decision in Allied International Products Ltd that even if any of the stock exchanges mentioned in the prospectus approved the application for enlistment it would mean sufficient compliance with the provisions of Section 73 and allotment made in pursuances of that prospectus would be valid was sought to be overcome by amending Section 73 to provide that enlistment has to be done in all the stock exchanges mentioned in the prospectus and in the case of failure to do so the money received in respect of allotment of shares on the basis of the prospectus should be refunded within a specified time. Thus the consequence of rendering the entire allotment of shares void was required to ensue if the enlistment contemplated in all the stock exchanges mentioned in the prospectus does not materialise. There can be no doubt that the clear object of insertion of sub-section (1A) in Section 73 was overcome the decision in Allied International Products Ltd. by amending the law in this manner. The question is whether this object has been achieved by the language used in sub-section (1A) of Section 73.The meaning and true purport of the word `each in the relevant expression in Section 73(1A) is to be determined for this purpose. In Collins Dictionary of the English Language, the meaning of `each is given as "every (one) of two or more considered individually"; and `every means "each one (of the class specified), without exception". In Strouds Judicial Dictionary of Words and Phrases the true meaning of `every is "each one of all". 10. The meaning of the word `each in the expression "if the permission has not been granted by the stock exchange or each such stock exchange" in sub-section (1A) of Section 73 is now to be determined. Sub-section (1A) of Section 73 is now required that where a prospectus states that an application under sub-section (1) has been made for permission for t he shares or debentures offered thereby to be dealt in one or more recognised stock exchanges, `such prospectus shall state the name of the stock exchange or, as the case may be, each such stock exchange. In other words, if the application is made only to one stock exchange then the name of that stock exchange is to be mentioned and where the prospectus states that application has been made to more than one recognised stock exchanges then it shall state the name of each such stock exchange, i.e. , every such stock exchange or in other words, all the stock exchanges to which the application has been made. The second part of sub-section (1A) of Section 73 then provides the consequence of refusal of the permission by saying that any allotment made on an application in pursuance of such prospectus shall be void "if the permission has not been granted by the stock exchange or each such stock exchange", as the case may be, before the expiry of ten weeks from the date of the closing of t he subscription list. This means that any allotment made shall be void if the permission has not been granted by the stock exchange where the application is made only to one stock exchange or each such stock exchange "where the application is made to more than one stock exchange". The expression "each such stock exchange" here must mean the same as in the earlier part of sub-section (1A) of Section 73, i.e., each every or in other words, all such stock exchanges. Thus, where t he prospectus held out that enlistment of shares would be in more than one stock exchange the consequence envisaged in sub-section (1A) of Section 73 ensues to render void the entire allotment of shares unless the permission is granted by each and everyone or all of the stock exchanges named in the prospectus for enlisting the shares. This is the plain meaning of sub-section (1A) of Section 73. In short, unless permission is granted by each or everyone of all the stock exchanges named in the prospectus for listing of shares to which application is made by the company, the consequence is to render the entire allotment void. In other words, if the permission has not been granted by any one of the several stock exchanges named in the prospectus for listing of shares the consequence by virtue of sub-section (1A) of Section 73 is to render the entire allotment void and the grant of permission by one of them is inconsequential. This construction al so promotes the object of insertion of under section 73 by amendment of the law made to overcome the effect of the decision of this court in Allied International Products Ltd. 11. The contention of Shri Nariman, learned counsel for the appellants is, therefore, untenable. | 0[ds]It is, therefore, clear that the effect of the decision of this Court in Allied International Products Ltd. in this behalf was sought to be overcome by making a suitable amendment in Section 73 since it was visualised that the said decision is likely to lead to complication inasmuch as the investing public as well as under-writing institutions were likely to lose the intended protection enjoyed by them. In other words the effect of the decision in Allied International Products Ltd that even if any of the stock exchanges mentioned in the prospectus approved the application for enlistment it would mean sufficient compliance with the provisions of Section 73 and allotment made in pursuances of that prospectus would be valid was sought to be overcome by amending Section 73 to provide that enlistment has to be done in all the stock exchanges mentioned in the prospectus and in the case of failure to do so the money received in respect of allotment of shares on the basis of the prospectus should be refunded within a specified time. Thus the consequence of rendering the entire allotment of shares void was required to ensue if the enlistment contemplated in all the stock exchanges mentioned in the prospectus does not materialise. There can be no doubt that the clear object of insertion of sub-section (1A) in Section 73 was overcome the decision in Allied International Products Ltd. by amending the law in this manner. The question is whether this object has been achieved by the language used in sub-section (1A) of Section 73.The meaning and true purport of the word `each in the relevant expression in Section 73(1A) is to be determined for this purpose. In Collins Dictionary of the English Language, the meaning of `each is given as "every (one) of two or more considered individually"; and `every means "each one (of the class specified), without exception". In Strouds Judicial Dictionary of Words and Phrases the true meaning of `every is "each one ofmeaning of the word `each in the expression "if the permission has not been granted by the stock exchange or each such stock exchange" in sub-section (1A) of Section 73 is now to be determined. Sub-section (1A) of Section 73 is now required that where a prospectus states that an application under sub-section (1) has been made for permission for t he shares or debentures offered thereby to be dealt in one or more recognised stock exchanges, `such prospectus shall state the name of the stock exchange or, as the case may be, each such stock exchange. In other words, if the application is made only to one stock exchange then the name of that stock exchange is to be mentioned and where the prospectus states that application has been made to more than one recognised stock exchanges then it shall state the name of each such stock exchange, i.e. , every such stock exchange or in other words, all the stock exchanges to which the application has been made. The second part of sub-section (1A) of Section 73 then provides the consequence of refusal of the permission by saying that any allotment made on an application in pursuance of such prospectus shall be void "if the permission has not been granted by the stock exchange or each such stock exchange", as the case may be, before the expiry of ten weeks from the date of the closing of t he subscription list. This means that any allotment made shall be void if the permission has not been granted by the stock exchange where the application is made only to one stock exchange or each such stock exchange "where the application is made to more than one stock exchange". The expression "each such stock exchange" here must mean the same as in the earlier part of sub-section (1A) of Section 73, i.e., each every or in other words, all such stock exchanges. Thus, where t he prospectus held out that enlistment of shares would be in more than one stock exchange the consequence envisaged in sub-section (1A) of Section 73 ensues to render void the entire allotment of shares unless the permission is granted by each and everyone or all of the stock exchanges named in the prospectus for enlisting the shares. This is the plain meaning of sub-section (1A) of Section 73. In short, unless permission is granted by each or everyone of all the stock exchanges named in the prospectus for listing of shares to which application is made by the company, the consequence is to render the entire allotment void. In other words, if the permission has not been granted by any one of the several stock exchanges named in the prospectus for listing of shares the consequence by virtue of sub-section (1A) of Section 73 is to render the entire allotment void and the grant of permission by one of them is inconsequential. This construction al so promotes the object of insertion of under section 73 by amendment of the law made to overcome the effect of the decision of this court in Allied International Products Ltd.The contention of Shri Nariman, learned counsel for the appellants is, therefore, untenable. | 0 | 2,612 | 955 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
India Vs. Allied International Products Limited, the Supreme Court has held that if the stock exchange had intimated that it would give further consideration to an application, the time limit contemplated by the section will not operate. It has also held that if any one of the stock exchanges mentioned in the prospectus approved the application for enlistment, it would mean sufficient compliance with the provisions of section 73 and the allotment made in pursuance of that prospectus would be valid.It has been felt that the decision of the Supreme Court referred to above is likely to lead to complications inasmch as the investing public as well as under-writing institutions are likely to lose the protection hitherto enjoyed by them. Hence section 73 is being amended suitably." (emphasis supplied) 9. It is, therefore, clear that the effect of the decision of this Court in Allied International Products Ltd. in this behalf was sought to be overcome by making a suitable amendment in Section 73 since it was visualised that the said decision is likely to lead to complication inasmuch as the investing public as well as under-writing institutions were likely to lose the intended protection enjoyed by them. In other words the effect of the decision in Allied International Products Ltd that even if any of the stock exchanges mentioned in the prospectus approved the application for enlistment it would mean sufficient compliance with the provisions of Section 73 and allotment made in pursuances of that prospectus would be valid was sought to be overcome by amending Section 73 to provide that enlistment has to be done in all the stock exchanges mentioned in the prospectus and in the case of failure to do so the money received in respect of allotment of shares on the basis of the prospectus should be refunded within a specified time. Thus the consequence of rendering the entire allotment of shares void was required to ensue if the enlistment contemplated in all the stock exchanges mentioned in the prospectus does not materialise. There can be no doubt that the clear object of insertion of sub-section (1A) in Section 73 was overcome the decision in Allied International Products Ltd. by amending the law in this manner. The question is whether this object has been achieved by the language used in sub-section (1A) of Section 73.The meaning and true purport of the word `each in the relevant expression in Section 73(1A) is to be determined for this purpose. In Collins Dictionary of the English Language, the meaning of `each is given as "every (one) of two or more considered individually"; and `every means "each one (of the class specified), without exception". In Strouds Judicial Dictionary of Words and Phrases the true meaning of `every is "each one of all". 10. The meaning of the word `each in the expression "if the permission has not been granted by the stock exchange or each such stock exchange" in sub-section (1A) of Section 73 is now to be determined. Sub-section (1A) of Section 73 is now required that where a prospectus states that an application under sub-section (1) has been made for permission for t he shares or debentures offered thereby to be dealt in one or more recognised stock exchanges, `such prospectus shall state the name of the stock exchange or, as the case may be, each such stock exchange. In other words, if the application is made only to one stock exchange then the name of that stock exchange is to be mentioned and where the prospectus states that application has been made to more than one recognised stock exchanges then it shall state the name of each such stock exchange, i.e. , every such stock exchange or in other words, all the stock exchanges to which the application has been made. The second part of sub-section (1A) of Section 73 then provides the consequence of refusal of the permission by saying that any allotment made on an application in pursuance of such prospectus shall be void "if the permission has not been granted by the stock exchange or each such stock exchange", as the case may be, before the expiry of ten weeks from the date of the closing of t he subscription list. This means that any allotment made shall be void if the permission has not been granted by the stock exchange where the application is made only to one stock exchange or each such stock exchange "where the application is made to more than one stock exchange". The expression "each such stock exchange" here must mean the same as in the earlier part of sub-section (1A) of Section 73, i.e., each every or in other words, all such stock exchanges. Thus, where t he prospectus held out that enlistment of shares would be in more than one stock exchange the consequence envisaged in sub-section (1A) of Section 73 ensues to render void the entire allotment of shares unless the permission is granted by each and everyone or all of the stock exchanges named in the prospectus for enlisting the shares. This is the plain meaning of sub-section (1A) of Section 73. In short, unless permission is granted by each or everyone of all the stock exchanges named in the prospectus for listing of shares to which application is made by the company, the consequence is to render the entire allotment void. In other words, if the permission has not been granted by any one of the several stock exchanges named in the prospectus for listing of shares the consequence by virtue of sub-section (1A) of Section 73 is to render the entire allotment void and the grant of permission by one of them is inconsequential. This construction al so promotes the object of insertion of under section 73 by amendment of the law made to overcome the effect of the decision of this court in Allied International Products Ltd. 11. The contention of Shri Nariman, learned counsel for the appellants is, therefore, untenable.
### Response:
0
### Explanation:
It is, therefore, clear that the effect of the decision of this Court in Allied International Products Ltd. in this behalf was sought to be overcome by making a suitable amendment in Section 73 since it was visualised that the said decision is likely to lead to complication inasmuch as the investing public as well as under-writing institutions were likely to lose the intended protection enjoyed by them. In other words the effect of the decision in Allied International Products Ltd that even if any of the stock exchanges mentioned in the prospectus approved the application for enlistment it would mean sufficient compliance with the provisions of Section 73 and allotment made in pursuances of that prospectus would be valid was sought to be overcome by amending Section 73 to provide that enlistment has to be done in all the stock exchanges mentioned in the prospectus and in the case of failure to do so the money received in respect of allotment of shares on the basis of the prospectus should be refunded within a specified time. Thus the consequence of rendering the entire allotment of shares void was required to ensue if the enlistment contemplated in all the stock exchanges mentioned in the prospectus does not materialise. There can be no doubt that the clear object of insertion of sub-section (1A) in Section 73 was overcome the decision in Allied International Products Ltd. by amending the law in this manner. The question is whether this object has been achieved by the language used in sub-section (1A) of Section 73.The meaning and true purport of the word `each in the relevant expression in Section 73(1A) is to be determined for this purpose. In Collins Dictionary of the English Language, the meaning of `each is given as "every (one) of two or more considered individually"; and `every means "each one (of the class specified), without exception". In Strouds Judicial Dictionary of Words and Phrases the true meaning of `every is "each one ofmeaning of the word `each in the expression "if the permission has not been granted by the stock exchange or each such stock exchange" in sub-section (1A) of Section 73 is now to be determined. Sub-section (1A) of Section 73 is now required that where a prospectus states that an application under sub-section (1) has been made for permission for t he shares or debentures offered thereby to be dealt in one or more recognised stock exchanges, `such prospectus shall state the name of the stock exchange or, as the case may be, each such stock exchange. In other words, if the application is made only to one stock exchange then the name of that stock exchange is to be mentioned and where the prospectus states that application has been made to more than one recognised stock exchanges then it shall state the name of each such stock exchange, i.e. , every such stock exchange or in other words, all the stock exchanges to which the application has been made. The second part of sub-section (1A) of Section 73 then provides the consequence of refusal of the permission by saying that any allotment made on an application in pursuance of such prospectus shall be void "if the permission has not been granted by the stock exchange or each such stock exchange", as the case may be, before the expiry of ten weeks from the date of the closing of t he subscription list. This means that any allotment made shall be void if the permission has not been granted by the stock exchange where the application is made only to one stock exchange or each such stock exchange "where the application is made to more than one stock exchange". The expression "each such stock exchange" here must mean the same as in the earlier part of sub-section (1A) of Section 73, i.e., each every or in other words, all such stock exchanges. Thus, where t he prospectus held out that enlistment of shares would be in more than one stock exchange the consequence envisaged in sub-section (1A) of Section 73 ensues to render void the entire allotment of shares unless the permission is granted by each and everyone or all of the stock exchanges named in the prospectus for enlisting the shares. This is the plain meaning of sub-section (1A) of Section 73. In short, unless permission is granted by each or everyone of all the stock exchanges named in the prospectus for listing of shares to which application is made by the company, the consequence is to render the entire allotment void. In other words, if the permission has not been granted by any one of the several stock exchanges named in the prospectus for listing of shares the consequence by virtue of sub-section (1A) of Section 73 is to render the entire allotment void and the grant of permission by one of them is inconsequential. This construction al so promotes the object of insertion of under section 73 by amendment of the law made to overcome the effect of the decision of this court in Allied International Products Ltd.The contention of Shri Nariman, learned counsel for the appellants is, therefore, untenable.
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State Of Rajasthan And Anr Vs. Sripal Jain | must also be of the nature of a penalty. Taking all the three clauses of item (vii) as a whole, it appears that item (vii) provides for a complete scheme with reference to three kinds of penalties, namely, dismissal, removal and compulsory retirement and makes it incumbent that cases of this kind must be referred to the Governor. We cannot therefore agree with the High Court that compulsory retirement provided in item (vii)(a) includes all the three kinds of compulsory retirement. It must therefore be held that the contention of the appellants that compulsory retirement provided in item (vii)(a) is compulsory retirement as a penalty and not compulsory retirement of the other two kinds, namely, (1) compulsory retirement on attaining the age of superannuation and (2) compulsory retirement under r. 244(2), neither of which is a punishment is correct. In particular Note 2 of r. 244(2) makes it perfectly clear that action thereunder is not a penalty. This is further made clear by Explanation (vi) to r. 14 of the Classification Rules, which provides that compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement is not a penalty. Rule 56 of the Service Rules is a rule relating to superannuation and r. 244(2) of the Service Rules is a rule relating to retirement and both of them do not amount to penalties in view of this Explanation. We are therefore of opinion that r. 31(vii)(a) when it speaks of compulsory retiring of an officer speaks of compulsory retirement as a penalty and not compulsory retirement on reaching the age of superannuation or under r. 244(2). It is therefore not necessary to submit the papers with respect to compulsory retirement of the respondent under r. 244(2) to the Governor. This was the only ground on which High Court allowed the writ petition and therefore the appeal must succeed.It is however urged on behalf of the respondent that r. 244(2) of the Service Rules contemplates an order of compulsory retirement by Government and the order in the present case was not passed by the Government but by the Inspector General of Police. It is further urged that if it is an order of the Government it should be in the form required by Art. 166 of the Constitution, and as it is not in that form there is in law no order of the Government ordering the compulsory retirement of the respondent. The order is in these terms :- The following Inspectors of Police are compulsorily retired from the Government service under Rule 244(2) of P.S.R. :- (2) Shri Sripal Jain s/o Shri Sohanlal, C. I. Sanganer, Distt. Jaipur.: 5. There is no doubt that this order is not in the form required under Art. 166 of the Constitution. But it is well settled that any defect of form in the order would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed by it. It has been stated on behalf of the appellants that the order in question was communicated by the Inspector General of Police on the direction of the Government. It will be noticed that the order is in the passive voice. It does not say in the active voice that the Inspector General of Police ordered the retirement of the officers mentioned therein, though the impression that a person will get from it certainly is that the order of retirement was being passed by the Inspector General of Police. Therefore, the burden was thrown because of this defect in the form of the order on the appellants to show that in fact the order was passed by the Government. That has in our opinion been shown by the production of papers from the relevant file by the appellants. That shows that the recommendation of the high-powered Committee was approved by the Home Minister and the Chief Minister and the order of compulsory retirement was thus passed by the Government of Rajasthan. In this connection we may refer to r. 21 of the Business Rules. It says that cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge except as otherwise provided by any other rule. The only exception is r. 31(vii)(a) and that we have held does not apply to a case of compulsory retirement under r. 244(2). In these circumstances the order was of Government, though it was communicated by the Inspector General of Police and its form was defective. In the circumstances the order of retirement having been passed by a proper authority cannot be said to be invalid in law.It is further urged that under the Rajasthan General Clauses Act, No. VIII of 1955, Government or the Government includes both the Central Government and any State Government under s. 32(33) and the State Government means under s. 32(75) as from November 1, 1956, the Governor, and therefore when r. 244(2) requires an order by the Government, there should be an order of the Governor. Definitions under s. 32 are however to be read subject to anything repugnant in the subject or context or to any contrary intention, and that makes us back to the Business Rules framed under Art. 166 of the Constitution, where the power to deal with a case of this kind is given to the Minister-in-charge under r. 21. The definitions therefore of Government and the State Government in the Rajasthan General Clauses Act are of no help to the respondent once it is held that r. 31(vii)(a) of the Business Rules when it speaks of compulsory retiring of any officer refers only to compulsory retirement as a penalty under r. 14 of the Classification Rules and not to the two other kinds of retirement (namely, superannuation under r. 56 or retirement under r. 244(2) of the Service Rules). 6. | 1[ds]It is obvious that when cl. (b) speaks of a review petition, it must be referring to the review under Part VII of the Classification Rules. Clause (b) therefore which is confined to cases under cl. (a) which speaks of dismissal, removal or compulsory retirement, shows that all these are penalties as provided in r. 14 of the Classification Rules. Further cl. (c) provides that where, on review the Governor decides to enhance the penalty already imposed and the enhanced penalty is one of dismissal, removal or compulsory retirement of an officer the matter must be referred to the Governor. This clause makes it perfectly clear that the compulsory retirement referred to therein is a case of penalty and there can in our opinion be no doubt when we read this clause with cl. (a) that compulsory retirement mentioned therein must also be of the nature of a penalty. Taking all the three clauses of item (vii) as a whole, it appears that item (vii) provides for a complete scheme with reference to three kinds of penalties, namely, dismissal, removal and compulsory retirement and makes it incumbent that cases of this kind must be referred to the Governor. We cannot therefore agree with the High Court that compulsory retirement provided in item (vii)(a) includes all the three kinds of compulsory retirement. It must therefore be held that the contention of the appellants that compulsory retirement provided in item (vii)(a) is compulsory retirement as a penalty and not compulsory retirement of the other two kinds, namely, (1) compulsory retirement on attaining the age of superannuation and (2) compulsory retirement under r. 244(2), neither of which is a punishment is correct. In particular Note 2 of r. 244(2) makes it perfectly clear that action thereunder is not a penalty. This is further made clear by Explanation (vi) to r. 14 of the Classification Rules, which provides that compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement is not a penalty. Rule 56 of the Service Rules is a rule relating to superannuation and r. 244(2) of the Service Rules is a rule relating to retirement and both of them do not amount to penalties in view of this Explanation. We are therefore of opinion that r. 31(vii)(a) when it speaks of compulsory retiring of an officer speaks of compulsory retirement as a penalty and not compulsory retirement on reaching the age of superannuation or under r. 244(2). It is therefore not necessary to submit the papers with respect to compulsory retirement of the respondent under r. 244(2) to the Governor. This was the only ground on which High Court allowed the writ petition and therefore the appeal must succeedThere is no doubt that this order is not in the form required under Art. 166 of the Constitution. But it is well settled that any defect of form in the order would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed by itThere is no doubt that this order is not in the form required under Art. 166 of the Constitution. But it is well settled that any defect of form in the order would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed byhas been stated on behalf of the appellants that the order in question was communicated by the Inspector General of Police on the direction of the Government.It will be noticed that the order is in the passive voice. It does not say in the active voice that the Inspector General of Police ordered the retirement of the officers mentioned therein, though the impression that a person will get from it certainly is that the order of retirement was being passed by the Inspector General of Police. Therefore, the burden was thrown because of this defect in the form of the order on the appellants to show that in fact the order was passed by the Government. That has in our opinion been shown by the production of papers from the relevant file by the appellants. That shows that the recommendation of the high-powered Committee was approved by the Home Minister and the Chief Minister and the order of compulsory retirement was thus passed by the Government of RajasthanDefinitions under s. 32 are however to be read subject to anything repugnant in the subject or context or to any contrary intention, and that makes us back to the Business Rules framed under Art. 166 of the Constitution, where the power to deal with a case of this kind is given to the Minister-in-charge under r. 21. The definitions therefore of Government and the State Government in the Rajasthan General Clauses Act are of no help to the respondent once it is held that r. 31(vii)(a) of the Business Rules when it speaks of compulsory retiring of any officer refers only to compulsory retirement as a penalty under r. 14 of the Classification Rules and not to the two other kinds of retirement (namely, superannuation under r. 56 or retirement under r. 244(2) of the Service Rules). | 1 | 2,881 | 1,020 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
must also be of the nature of a penalty. Taking all the three clauses of item (vii) as a whole, it appears that item (vii) provides for a complete scheme with reference to three kinds of penalties, namely, dismissal, removal and compulsory retirement and makes it incumbent that cases of this kind must be referred to the Governor. We cannot therefore agree with the High Court that compulsory retirement provided in item (vii)(a) includes all the three kinds of compulsory retirement. It must therefore be held that the contention of the appellants that compulsory retirement provided in item (vii)(a) is compulsory retirement as a penalty and not compulsory retirement of the other two kinds, namely, (1) compulsory retirement on attaining the age of superannuation and (2) compulsory retirement under r. 244(2), neither of which is a punishment is correct. In particular Note 2 of r. 244(2) makes it perfectly clear that action thereunder is not a penalty. This is further made clear by Explanation (vi) to r. 14 of the Classification Rules, which provides that compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement is not a penalty. Rule 56 of the Service Rules is a rule relating to superannuation and r. 244(2) of the Service Rules is a rule relating to retirement and both of them do not amount to penalties in view of this Explanation. We are therefore of opinion that r. 31(vii)(a) when it speaks of compulsory retiring of an officer speaks of compulsory retirement as a penalty and not compulsory retirement on reaching the age of superannuation or under r. 244(2). It is therefore not necessary to submit the papers with respect to compulsory retirement of the respondent under r. 244(2) to the Governor. This was the only ground on which High Court allowed the writ petition and therefore the appeal must succeed.It is however urged on behalf of the respondent that r. 244(2) of the Service Rules contemplates an order of compulsory retirement by Government and the order in the present case was not passed by the Government but by the Inspector General of Police. It is further urged that if it is an order of the Government it should be in the form required by Art. 166 of the Constitution, and as it is not in that form there is in law no order of the Government ordering the compulsory retirement of the respondent. The order is in these terms :- The following Inspectors of Police are compulsorily retired from the Government service under Rule 244(2) of P.S.R. :- (2) Shri Sripal Jain s/o Shri Sohanlal, C. I. Sanganer, Distt. Jaipur.: 5. There is no doubt that this order is not in the form required under Art. 166 of the Constitution. But it is well settled that any defect of form in the order would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed by it. It has been stated on behalf of the appellants that the order in question was communicated by the Inspector General of Police on the direction of the Government. It will be noticed that the order is in the passive voice. It does not say in the active voice that the Inspector General of Police ordered the retirement of the officers mentioned therein, though the impression that a person will get from it certainly is that the order of retirement was being passed by the Inspector General of Police. Therefore, the burden was thrown because of this defect in the form of the order on the appellants to show that in fact the order was passed by the Government. That has in our opinion been shown by the production of papers from the relevant file by the appellants. That shows that the recommendation of the high-powered Committee was approved by the Home Minister and the Chief Minister and the order of compulsory retirement was thus passed by the Government of Rajasthan. In this connection we may refer to r. 21 of the Business Rules. It says that cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge except as otherwise provided by any other rule. The only exception is r. 31(vii)(a) and that we have held does not apply to a case of compulsory retirement under r. 244(2). In these circumstances the order was of Government, though it was communicated by the Inspector General of Police and its form was defective. In the circumstances the order of retirement having been passed by a proper authority cannot be said to be invalid in law.It is further urged that under the Rajasthan General Clauses Act, No. VIII of 1955, Government or the Government includes both the Central Government and any State Government under s. 32(33) and the State Government means under s. 32(75) as from November 1, 1956, the Governor, and therefore when r. 244(2) requires an order by the Government, there should be an order of the Governor. Definitions under s. 32 are however to be read subject to anything repugnant in the subject or context or to any contrary intention, and that makes us back to the Business Rules framed under Art. 166 of the Constitution, where the power to deal with a case of this kind is given to the Minister-in-charge under r. 21. The definitions therefore of Government and the State Government in the Rajasthan General Clauses Act are of no help to the respondent once it is held that r. 31(vii)(a) of the Business Rules when it speaks of compulsory retiring of any officer refers only to compulsory retirement as a penalty under r. 14 of the Classification Rules and not to the two other kinds of retirement (namely, superannuation under r. 56 or retirement under r. 244(2) of the Service Rules). 6.
### Response:
1
### Explanation:
It is obvious that when cl. (b) speaks of a review petition, it must be referring to the review under Part VII of the Classification Rules. Clause (b) therefore which is confined to cases under cl. (a) which speaks of dismissal, removal or compulsory retirement, shows that all these are penalties as provided in r. 14 of the Classification Rules. Further cl. (c) provides that where, on review the Governor decides to enhance the penalty already imposed and the enhanced penalty is one of dismissal, removal or compulsory retirement of an officer the matter must be referred to the Governor. This clause makes it perfectly clear that the compulsory retirement referred to therein is a case of penalty and there can in our opinion be no doubt when we read this clause with cl. (a) that compulsory retirement mentioned therein must also be of the nature of a penalty. Taking all the three clauses of item (vii) as a whole, it appears that item (vii) provides for a complete scheme with reference to three kinds of penalties, namely, dismissal, removal and compulsory retirement and makes it incumbent that cases of this kind must be referred to the Governor. We cannot therefore agree with the High Court that compulsory retirement provided in item (vii)(a) includes all the three kinds of compulsory retirement. It must therefore be held that the contention of the appellants that compulsory retirement provided in item (vii)(a) is compulsory retirement as a penalty and not compulsory retirement of the other two kinds, namely, (1) compulsory retirement on attaining the age of superannuation and (2) compulsory retirement under r. 244(2), neither of which is a punishment is correct. In particular Note 2 of r. 244(2) makes it perfectly clear that action thereunder is not a penalty. This is further made clear by Explanation (vi) to r. 14 of the Classification Rules, which provides that compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement is not a penalty. Rule 56 of the Service Rules is a rule relating to superannuation and r. 244(2) of the Service Rules is a rule relating to retirement and both of them do not amount to penalties in view of this Explanation. We are therefore of opinion that r. 31(vii)(a) when it speaks of compulsory retiring of an officer speaks of compulsory retirement as a penalty and not compulsory retirement on reaching the age of superannuation or under r. 244(2). It is therefore not necessary to submit the papers with respect to compulsory retirement of the respondent under r. 244(2) to the Governor. This was the only ground on which High Court allowed the writ petition and therefore the appeal must succeedThere is no doubt that this order is not in the form required under Art. 166 of the Constitution. But it is well settled that any defect of form in the order would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed by itThere is no doubt that this order is not in the form required under Art. 166 of the Constitution. But it is well settled that any defect of form in the order would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed byhas been stated on behalf of the appellants that the order in question was communicated by the Inspector General of Police on the direction of the Government.It will be noticed that the order is in the passive voice. It does not say in the active voice that the Inspector General of Police ordered the retirement of the officers mentioned therein, though the impression that a person will get from it certainly is that the order of retirement was being passed by the Inspector General of Police. Therefore, the burden was thrown because of this defect in the form of the order on the appellants to show that in fact the order was passed by the Government. That has in our opinion been shown by the production of papers from the relevant file by the appellants. That shows that the recommendation of the high-powered Committee was approved by the Home Minister and the Chief Minister and the order of compulsory retirement was thus passed by the Government of RajasthanDefinitions under s. 32 are however to be read subject to anything repugnant in the subject or context or to any contrary intention, and that makes us back to the Business Rules framed under Art. 166 of the Constitution, where the power to deal with a case of this kind is given to the Minister-in-charge under r. 21. The definitions therefore of Government and the State Government in the Rajasthan General Clauses Act are of no help to the respondent once it is held that r. 31(vii)(a) of the Business Rules when it speaks of compulsory retiring of any officer refers only to compulsory retirement as a penalty under r. 14 of the Classification Rules and not to the two other kinds of retirement (namely, superannuation under r. 56 or retirement under r. 244(2) of the Service Rules).
|
Dhoom Singh Vs. Prakash Chandra Sethi & Ors | notice is to be given not only to the parties to the election petition but it is to be published in the official gazette also. Sub-section (2) of Section 110 enjoins upon the High Court not to allow the: withdrawal application if it has been induced by any bargain or consideration which ought not to be allowed. If the withdrawal application is granted then Section 110 (3) (c) permits a person who might himself have been a petitioner in the election petition to apply to be substituted as petitioner in place of the party withdrawing within 14 days of the date of the publication of the notice in the official gazette. Similarly on the abatement of an election Petition on the death of the petitioner or petitioners as the case may be any person who might himself have been petitioner can apply to be substituted under sub-section (3) of Section 112.It is difficult to accept the contention put forward on behalf of the appellant that in substance and in effect the action of respondent no. 3, even assuming it was collusive or fraudulent. had the effect of withdrawing of his election petition by him. It may also be added that there was no such stand taken by the appellant in his petition filed in the High Court on 23-1-1973.None of the Provisions relating to withdrawal of election petition was attracted in this case.9. The Legislature in its wisdom has chosen to make specia1 provisions for the continuance of the election petition only in case if its withdrawal or abatement. It has yet not thought it fit to make any provision in the Act permitting intervention of an elector of the Constituency in all contingencies of failures of the election Petition either due to the collusion or fraud of the original election petitioner or otherwise. It is not necessary for this Court to express any opinion as to whether the omission to do so is deliberate or inadvertent, It may be a case of casus omissus. It is a well-known rule of construction of statutes that " A statute, even more than a contract, must be construed. ut res magis valeat quam pereat, so that the intentions of the legislature may not be treated as vain or left to operate in the air." A second consequence of this rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made" - See pages 69 and 70 of Craies on Statute Law - 6th edition.10. It seems plain that the High Court is enjoined to dismiss . an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. In the true cases of non-compliance with the said provisions of law a question of intervention by another person may not arise. But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under Section 86 (1). Even in such a situation we find no provision in the Act under which the High Court could Permit a person like the appellant to intervene in the matter or to substantiate- his allegations of fraud or collusion between the election petitioner and the returned candidate. It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in, the matter. If there be any necessity of avoiding any such situation as the present one was said to be it is for the legislature to intervene and make clear and express provision of law for the purpose.11. Mr. Gupte in support of his argument placed reliance upon a passage which occurs at pane 421 in the judgment of this Court in Sheodan Singh v. Mohan Lal Gautam (1969) 3 SCR 417 = (AIR 1969 SC 1024 ), and which is to the following effect"From the above provisions it is seen that in an election petition, the contest is really between the Constituency on the one side and the person or persons complained of on the other, Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner. The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not allowed to avoid the consequences of their misdeeds."But the said observations cannot and were not meant to travel beyond the realm of the contingencies of withdrawal and abatement of an election petition.12. In Duryodhan v. Sitaram. AIR 1970 All I (FB) one of the learned Judges constituting the Full Bench in his separate judgment pointed out at page 14 of a similar contingency arising in the case of dismissal of an election petition for default of appearance of the election petitioner. The argument that in such a situation "the intention of the legislature that a petition should not fail by reason of any bargain or collusion between the election petitioner and the successful candidate would be frustrated" was repelled on the ground. "There is undoubtedly a lacuna in the Act, because it makes provision when an election petitioner is allowed to withdraw, but makes no such provision if he just refuses to prosecute it. But that reason would not, as pointed out by Grover, J. in Jugal Kishores case AIR 1968 Punj 152 (F.B.) (Supra) be a sufficient reason to construe the provisions beyond the purview of their language." This is another type of contingency, where if thought necessary; it is for the Legislature to intervene: The Court is helpless. | 1[ds]5. Although in view of the explanation appended to sub-section (1) of Section 86 of the Act an order of the High Court dismissing the election petition under the said sub-section is to be deemed to be an order made under clause (a) of Section 98 and hence appealable under Sec. 116A, learned counsel for the appellant found it difficult to satisfy us that the scope of this appeal was to find out whether the appellant was a person who had a right to file such an appeal or in any event he had such right.The appellant was not a party to the election petition nor was he allowed the intervention by the High Court. In this appeal, therefore, there is no question of permitting the appellant to challenge the order of the High Court made under section 86 of the Act on merits.6. There is, however, no doubt that in this appeal it is open to the appellant to assail the order made by the High Court on his petition filed on 23-1-1973.We do not think that any of the points urged on behalf of the appellant is fit tois difficult to accept the contention put forward on behalf of the appellant that in substance and in effect the action of respondent no. 3, even assuming it was collusive or fraudulent. had the effect of withdrawing of his election petition by him. It may also be added that there was no such stand taken by the appellant in his petition filed in the High Court on 23-1-1973.None of the Provisions relating to withdrawal of election petition was attracted in this case.It seems plain that the High Court is enjoined to dismiss . an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. In the true cases of non-compliance with the said provisions of law a question of intervention by another person may not arise. But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under Section 86 (1). Even in such a situation we find no provision in the Act under which the High Court could Permit a person like the appellant to intervene in the matter or to substantiate- his allegations of fraud or collusion between the election petitioner and the returned candidate. It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in, the matter. If there be any necessity of avoiding any such situation as the present one was said to be it is for the legislature to intervene and make clear and express provision of law for thethe said observations cannot and were not meant to travel beyond the realm of the contingencies of withdrawal and abatement of an election petition.The Court is helpless. | 1 | 2,491 | 565 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
notice is to be given not only to the parties to the election petition but it is to be published in the official gazette also. Sub-section (2) of Section 110 enjoins upon the High Court not to allow the: withdrawal application if it has been induced by any bargain or consideration which ought not to be allowed. If the withdrawal application is granted then Section 110 (3) (c) permits a person who might himself have been a petitioner in the election petition to apply to be substituted as petitioner in place of the party withdrawing within 14 days of the date of the publication of the notice in the official gazette. Similarly on the abatement of an election Petition on the death of the petitioner or petitioners as the case may be any person who might himself have been petitioner can apply to be substituted under sub-section (3) of Section 112.It is difficult to accept the contention put forward on behalf of the appellant that in substance and in effect the action of respondent no. 3, even assuming it was collusive or fraudulent. had the effect of withdrawing of his election petition by him. It may also be added that there was no such stand taken by the appellant in his petition filed in the High Court on 23-1-1973.None of the Provisions relating to withdrawal of election petition was attracted in this case.9. The Legislature in its wisdom has chosen to make specia1 provisions for the continuance of the election petition only in case if its withdrawal or abatement. It has yet not thought it fit to make any provision in the Act permitting intervention of an elector of the Constituency in all contingencies of failures of the election Petition either due to the collusion or fraud of the original election petitioner or otherwise. It is not necessary for this Court to express any opinion as to whether the omission to do so is deliberate or inadvertent, It may be a case of casus omissus. It is a well-known rule of construction of statutes that " A statute, even more than a contract, must be construed. ut res magis valeat quam pereat, so that the intentions of the legislature may not be treated as vain or left to operate in the air." A second consequence of this rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made" - See pages 69 and 70 of Craies on Statute Law - 6th edition.10. It seems plain that the High Court is enjoined to dismiss . an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. In the true cases of non-compliance with the said provisions of law a question of intervention by another person may not arise. But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under Section 86 (1). Even in such a situation we find no provision in the Act under which the High Court could Permit a person like the appellant to intervene in the matter or to substantiate- his allegations of fraud or collusion between the election petitioner and the returned candidate. It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in, the matter. If there be any necessity of avoiding any such situation as the present one was said to be it is for the legislature to intervene and make clear and express provision of law for the purpose.11. Mr. Gupte in support of his argument placed reliance upon a passage which occurs at pane 421 in the judgment of this Court in Sheodan Singh v. Mohan Lal Gautam (1969) 3 SCR 417 = (AIR 1969 SC 1024 ), and which is to the following effect"From the above provisions it is seen that in an election petition, the contest is really between the Constituency on the one side and the person or persons complained of on the other, Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner. The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not allowed to avoid the consequences of their misdeeds."But the said observations cannot and were not meant to travel beyond the realm of the contingencies of withdrawal and abatement of an election petition.12. In Duryodhan v. Sitaram. AIR 1970 All I (FB) one of the learned Judges constituting the Full Bench in his separate judgment pointed out at page 14 of a similar contingency arising in the case of dismissal of an election petition for default of appearance of the election petitioner. The argument that in such a situation "the intention of the legislature that a petition should not fail by reason of any bargain or collusion between the election petitioner and the successful candidate would be frustrated" was repelled on the ground. "There is undoubtedly a lacuna in the Act, because it makes provision when an election petitioner is allowed to withdraw, but makes no such provision if he just refuses to prosecute it. But that reason would not, as pointed out by Grover, J. in Jugal Kishores case AIR 1968 Punj 152 (F.B.) (Supra) be a sufficient reason to construe the provisions beyond the purview of their language." This is another type of contingency, where if thought necessary; it is for the Legislature to intervene: The Court is helpless.
### Response:
1
### Explanation:
5. Although in view of the explanation appended to sub-section (1) of Section 86 of the Act an order of the High Court dismissing the election petition under the said sub-section is to be deemed to be an order made under clause (a) of Section 98 and hence appealable under Sec. 116A, learned counsel for the appellant found it difficult to satisfy us that the scope of this appeal was to find out whether the appellant was a person who had a right to file such an appeal or in any event he had such right.The appellant was not a party to the election petition nor was he allowed the intervention by the High Court. In this appeal, therefore, there is no question of permitting the appellant to challenge the order of the High Court made under section 86 of the Act on merits.6. There is, however, no doubt that in this appeal it is open to the appellant to assail the order made by the High Court on his petition filed on 23-1-1973.We do not think that any of the points urged on behalf of the appellant is fit tois difficult to accept the contention put forward on behalf of the appellant that in substance and in effect the action of respondent no. 3, even assuming it was collusive or fraudulent. had the effect of withdrawing of his election petition by him. It may also be added that there was no such stand taken by the appellant in his petition filed in the High Court on 23-1-1973.None of the Provisions relating to withdrawal of election petition was attracted in this case.It seems plain that the High Court is enjoined to dismiss . an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. In the true cases of non-compliance with the said provisions of law a question of intervention by another person may not arise. But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under Section 86 (1). Even in such a situation we find no provision in the Act under which the High Court could Permit a person like the appellant to intervene in the matter or to substantiate- his allegations of fraud or collusion between the election petitioner and the returned candidate. It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in, the matter. If there be any necessity of avoiding any such situation as the present one was said to be it is for the legislature to intervene and make clear and express provision of law for thethe said observations cannot and were not meant to travel beyond the realm of the contingencies of withdrawal and abatement of an election petition.The Court is helpless.
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Calcutta Port Trust Vs. Shalimar Tar Products Limited | 1. This appeal by the special leave is against the judgment and order of the Calcutta High Court in Civil Rule No. 1533 of 1975 confirming in appeal the order of the trial court whereby the suit of the plaintiff-appellant was dismissed for non-production of documents under Order XI Rule 21 of the Code of Civil Procedure 2. The facts giving the rise (sic) are very simple. The plaintiff is the Calcutta Port Trust. Some land belonging to it together with structures thereon was let out to the respondent Company. A suit for a recovery of Rs 1, 04, 299.72 paise was instituted by the appellant in the court of the VIth Subordinate Judge at Alipur on the basis that the Company was in arrears of rent. This was on the basis that the monthly rent as claimed by the appellant was Rs 4131.41 plus municipal taxes which rent had later been increased to Rs 5164.26 paise plus municipal taxes. The defendant-respondent took a long time to file its written statement. Finally in its written statement the defendant-respondent admitted liability to pay rent but to the extent of Rs 3423.76 paise per mensem. At the same time the defendant-respondent asked the appellant to produce certain documents. The court passed the necessary orders requiring the plaintiff to produce documents for inspection under Rule 20 of Order XI. Since there was non-compliance of the order for inspection the plaintiff and his counsel were also absent, the suit was dismissed for non-prosecution on July 22, 1974. The appellants took the matter under appeal before the Calcutta High Court which was dismissed as barred by limitation. This has given rise to the present appeal by special leave 3. We have heard learned counsel. There are two facets to the case. The suit of the appellant was partly contested, as is evident. To the uncontested part there was no dispute. The trial court in face of the pleadings of the parties, and more so of the defendant, was obliged to pass decree for arrears of rent for the period in question at the conceded rate of Rs 3423.76 paise. There was no option for the court other than this. Order XI Rule 8 of the Code of Civil Procedure enjoins the court that where the defendant appears, and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. On the uncontested part the trial court was obliged to pass a partial decree in favour of the plaintiff even though he and his counsel were absent on the date when action was taken under Order XI Rule 21 of the Civil Procedure Code. The order of the trial court in dismissing the entire plaint for non prosecution was thus an error of jurisdiction and was correctable by the High Court, even when not appealed against, under provisions of Section 115 of the Civil Procedure Code on its own motion. The bar of limitation set up in the appellate judgment of the High Court, in our view, cannot stand in the way of partial decree of the suit. The same view of the High Court is otherwise sustainable for the remaining contested part of the suit. So we split both the orders of the trial court as well as that of the High Court in confirming these orders to the contested part of the claim of the plaintiff and right now pass the decree on the partially admitted claim of the plaintiff-appellant which, as per the plaint is for the period from February 70 to December 1971 at the rate suggested rent of Rs 3423.76 paise. | 1[ds]There are two facets to the case. The suit of the appellant was partly contested, as is evident. To the uncontested part there was no dispute. The trial court in face of the pleadings of the parties, and more so of the defendant, was obliged to pass decree for arrears of rent for the period in question at the conceded rate of Rs 3423.76 paise. There was no option for the court other than this. Order XI Rule 8 of the Code of Civil Procedure enjoins the court that where the defendant appears, and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. On the uncontested part the trial court was obliged to pass a partial decree in favour of the plaintiff even though he and his counsel were absent on the date when action was taken under Order XI Rule 21 of the Civil Procedure Code. The order of the trial court in dismissing the entire plaint for non prosecution was thus an error of jurisdiction and was correctable by the High Court, even when not appealed against, under provisions of Section 115 of the Civil Procedure Code on its own motion. The bar of limitation set up in the appellate judgment of the High Court, in our view, cannot stand in the way of partial decree of the suit. The same view of the High Court is otherwise sustainable for the remaining contested part of the suit. So we split both the orders of the trial court as well as that of the High Court in confirming these orders to the contested part of the claim of the plaintiff and right now pass the decree on the partially admitted claim of thewhich, as per the plaint is for the period from February 70 to December 1971 at the rate suggested rent of Rs 3423.76 paise. | 1 | 709 | 400 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
1. This appeal by the special leave is against the judgment and order of the Calcutta High Court in Civil Rule No. 1533 of 1975 confirming in appeal the order of the trial court whereby the suit of the plaintiff-appellant was dismissed for non-production of documents under Order XI Rule 21 of the Code of Civil Procedure 2. The facts giving the rise (sic) are very simple. The plaintiff is the Calcutta Port Trust. Some land belonging to it together with structures thereon was let out to the respondent Company. A suit for a recovery of Rs 1, 04, 299.72 paise was instituted by the appellant in the court of the VIth Subordinate Judge at Alipur on the basis that the Company was in arrears of rent. This was on the basis that the monthly rent as claimed by the appellant was Rs 4131.41 plus municipal taxes which rent had later been increased to Rs 5164.26 paise plus municipal taxes. The defendant-respondent took a long time to file its written statement. Finally in its written statement the defendant-respondent admitted liability to pay rent but to the extent of Rs 3423.76 paise per mensem. At the same time the defendant-respondent asked the appellant to produce certain documents. The court passed the necessary orders requiring the plaintiff to produce documents for inspection under Rule 20 of Order XI. Since there was non-compliance of the order for inspection the plaintiff and his counsel were also absent, the suit was dismissed for non-prosecution on July 22, 1974. The appellants took the matter under appeal before the Calcutta High Court which was dismissed as barred by limitation. This has given rise to the present appeal by special leave 3. We have heard learned counsel. There are two facets to the case. The suit of the appellant was partly contested, as is evident. To the uncontested part there was no dispute. The trial court in face of the pleadings of the parties, and more so of the defendant, was obliged to pass decree for arrears of rent for the period in question at the conceded rate of Rs 3423.76 paise. There was no option for the court other than this. Order XI Rule 8 of the Code of Civil Procedure enjoins the court that where the defendant appears, and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. On the uncontested part the trial court was obliged to pass a partial decree in favour of the plaintiff even though he and his counsel were absent on the date when action was taken under Order XI Rule 21 of the Civil Procedure Code. The order of the trial court in dismissing the entire plaint for non prosecution was thus an error of jurisdiction and was correctable by the High Court, even when not appealed against, under provisions of Section 115 of the Civil Procedure Code on its own motion. The bar of limitation set up in the appellate judgment of the High Court, in our view, cannot stand in the way of partial decree of the suit. The same view of the High Court is otherwise sustainable for the remaining contested part of the suit. So we split both the orders of the trial court as well as that of the High Court in confirming these orders to the contested part of the claim of the plaintiff and right now pass the decree on the partially admitted claim of the plaintiff-appellant which, as per the plaint is for the period from February 70 to December 1971 at the rate suggested rent of Rs 3423.76 paise.
### Response:
1
### Explanation:
There are two facets to the case. The suit of the appellant was partly contested, as is evident. To the uncontested part there was no dispute. The trial court in face of the pleadings of the parties, and more so of the defendant, was obliged to pass decree for arrears of rent for the period in question at the conceded rate of Rs 3423.76 paise. There was no option for the court other than this. Order XI Rule 8 of the Code of Civil Procedure enjoins the court that where the defendant appears, and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. On the uncontested part the trial court was obliged to pass a partial decree in favour of the plaintiff even though he and his counsel were absent on the date when action was taken under Order XI Rule 21 of the Civil Procedure Code. The order of the trial court in dismissing the entire plaint for non prosecution was thus an error of jurisdiction and was correctable by the High Court, even when not appealed against, under provisions of Section 115 of the Civil Procedure Code on its own motion. The bar of limitation set up in the appellate judgment of the High Court, in our view, cannot stand in the way of partial decree of the suit. The same view of the High Court is otherwise sustainable for the remaining contested part of the suit. So we split both the orders of the trial court as well as that of the High Court in confirming these orders to the contested part of the claim of the plaintiff and right now pass the decree on the partially admitted claim of thewhich, as per the plaint is for the period from February 70 to December 1971 at the rate suggested rent of Rs 3423.76 paise.
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Union of India Vs. Momin Construction Company | 1. These appeals raise the same question of law and can be decided by a common judgment 2. For the purpose of convenience, the brief facts that are set out relate to the first appeal, Civil Appeal No. 1316 of 1977. The relevant dates in the other appeals are similar3. The appellant and the respondents entered into a contract which contained an arbitration clause, namely, that all disputes or matters of differences between them arising out of or connected with the contract during the progress of the construction work therein set out or after its completion would be decided by arbitration. The final bill in respect of the construction work was prepared and the respondents gave a "No Claim Certificate" on 11-8-1965, whereupon the final bill was passed. On 26-2-1971, the respondents filed a petition under Section 20 of the Arbitration Act to take on the file of the City Civil Court, Ahmedabad the arbitration agreement aforementioned. The appellant contested the petition and urged that it was barred by limitation. The issue was answered against the appellant and the petition was allowed4. The appellant preferred an appeal to the Gujarat High Court. The High Court relied upon various judgments and concluded, basing itself principally upon the decision of this Court in Town Municipal Council v. Presiding Officer, Labour Courts ( 1969 (1) SCC 873 : 1970 (1) SCR 51 ) that Article 137 of the Limitation Act, 1963, did not apply to an application under Section 20 of the Arbitration Act. The High Court dismissed the appeal 5. Two judgments of this Court subsequent to the decision in the case of the Town Municipal Council ( 1969 (1) SCC 873 : 1970 (1) SCR 51 ) aforesaid must be noted 6. In Kerala SEB v. T. P. Kunhaliumma ( 1976 (4) SCC 634 : 1977 (1) SCR 996 ) this Court held that Article 137 of the Limitation Act, 1963, would apply to any petition or application filed under any Act to a civil court. The view taken by the two-Judge Bench in the Town Municipal Council case ( 1969 (1) SCC 873 : 1970 (1) SCR 51 ) aforementioned was expressly differed from and it was held that Article 137 was not confined to applications contemplated by or under the Code of Civil Procedure. In Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority ( 1988 (2) SCC 338 : 1988 (3) SCR 351 ) the decision in the case of Kerala SEB ( 1976 (4) SCC 634 : 1977 (1) SCR 996 ) just cited was applied in respect of an application under Section 20 of the Arbitration Act. It was held that Article 137 applied thereto 7. The claim in the first appeal aforementioned arose to the respondents therein before 11-8-1965, when they issued the "No Claim Certificate" and the final bill was passed. The right to apply under Section 20 of the Arbitration Act, therefore, arose to the respondents before 11-8-1965. The application under Section 20 was made by them much after the expiry of three years therefrom. The application under Section 20 was, therefore, plainly barred by time. The cases in the other appeals are similar 8. The respondents in the appeals have chosen not to appear. No point other than that mentioned above has been urged | 1[ds]7. The claim in the first appeal aforementioned arose to the respondents therein beforewhen they issued the "No Claim Certificate" and the final bill was passed. The right to apply under Section 20 of the Arbitration Act, therefore, arose to the respondents beforeThe application under Section 20 was made by them much after the expiry of three years therefrom. The application under Section 20 was, therefore, plainly barred by time. The cases in the other appeals are similar | 1 | 625 | 92 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
1. These appeals raise the same question of law and can be decided by a common judgment 2. For the purpose of convenience, the brief facts that are set out relate to the first appeal, Civil Appeal No. 1316 of 1977. The relevant dates in the other appeals are similar3. The appellant and the respondents entered into a contract which contained an arbitration clause, namely, that all disputes or matters of differences between them arising out of or connected with the contract during the progress of the construction work therein set out or after its completion would be decided by arbitration. The final bill in respect of the construction work was prepared and the respondents gave a "No Claim Certificate" on 11-8-1965, whereupon the final bill was passed. On 26-2-1971, the respondents filed a petition under Section 20 of the Arbitration Act to take on the file of the City Civil Court, Ahmedabad the arbitration agreement aforementioned. The appellant contested the petition and urged that it was barred by limitation. The issue was answered against the appellant and the petition was allowed4. The appellant preferred an appeal to the Gujarat High Court. The High Court relied upon various judgments and concluded, basing itself principally upon the decision of this Court in Town Municipal Council v. Presiding Officer, Labour Courts ( 1969 (1) SCC 873 : 1970 (1) SCR 51 ) that Article 137 of the Limitation Act, 1963, did not apply to an application under Section 20 of the Arbitration Act. The High Court dismissed the appeal 5. Two judgments of this Court subsequent to the decision in the case of the Town Municipal Council ( 1969 (1) SCC 873 : 1970 (1) SCR 51 ) aforesaid must be noted 6. In Kerala SEB v. T. P. Kunhaliumma ( 1976 (4) SCC 634 : 1977 (1) SCR 996 ) this Court held that Article 137 of the Limitation Act, 1963, would apply to any petition or application filed under any Act to a civil court. The view taken by the two-Judge Bench in the Town Municipal Council case ( 1969 (1) SCC 873 : 1970 (1) SCR 51 ) aforementioned was expressly differed from and it was held that Article 137 was not confined to applications contemplated by or under the Code of Civil Procedure. In Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority ( 1988 (2) SCC 338 : 1988 (3) SCR 351 ) the decision in the case of Kerala SEB ( 1976 (4) SCC 634 : 1977 (1) SCR 996 ) just cited was applied in respect of an application under Section 20 of the Arbitration Act. It was held that Article 137 applied thereto 7. The claim in the first appeal aforementioned arose to the respondents therein before 11-8-1965, when they issued the "No Claim Certificate" and the final bill was passed. The right to apply under Section 20 of the Arbitration Act, therefore, arose to the respondents before 11-8-1965. The application under Section 20 was made by them much after the expiry of three years therefrom. The application under Section 20 was, therefore, plainly barred by time. The cases in the other appeals are similar 8. The respondents in the appeals have chosen not to appear. No point other than that mentioned above has been urged
### Response:
1
### Explanation:
7. The claim in the first appeal aforementioned arose to the respondents therein beforewhen they issued the "No Claim Certificate" and the final bill was passed. The right to apply under Section 20 of the Arbitration Act, therefore, arose to the respondents beforeThe application under Section 20 was made by them much after the expiry of three years therefrom. The application under Section 20 was, therefore, plainly barred by time. The cases in the other appeals are similar
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Anoop Jaiswal Vs. Government of India and Another | judgment delivered by a Bench of seven Judges. As pointed out by us in all these cases including the case of Ran Chandra Trivedi (supra) the principle applied is the one enunciated by Parshotam Lal Dhingas case (supra) which we have referred to earlier. lt is urged relying upon the observation in Shri Sukh Raj Bahals case (supra) that it is only when there is a full scale Departmental enquiry envisaged by Article 311(2) of the Constitution i.e. an enquiry officer is appointed, a charge sheet submitted, explanation called for and considered, any termination made thereafter will, attract the operation of Artic le 311(2). It is significant that in the very same decision it is stated that the circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. As observed by Ray, C.J. in Shamsher Singhs case (supra) the form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article. 311(2).It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in t he form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee. 8. In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymansium acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries-were made behind the back of the appellant, only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If. On reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided ill Article 311(2) of the Constitution.The Union of India has placed before us all the relevant material including the recommendation of the Director of the National Police Academy that the appellant may be reinstated. In this case, as stated above, explanation was called for form the appellant and other probationers. Explanations were received and all the probationers including the appellant were individually interviewed in order to ascertain facts. Explanation submitted by him and the answers give by others had weighed with the Director before making the recommendation to the Government of India on the basis of which action was taken. The only ground which ultimately prevailed upon the Director was that the appellant had not shown any sign of repentance without informing him that h is case would be dealt with leniently if he showed an sign of repentance. In fact in the very first reply he gave to the Director on being asked about the incident which took place on June 22 1981, the appellant stated I sincerely regret the lapse, Neither in the letter which the Director first wrote to the Central Government nor in the counter affidavit filed in this Court, due importance has been given to the said expression of regret and it is further seen that no additional la pse on the part of the appellant between June 22, 1981 and the date on which the Director wrote the letter to the Central Government, which would show that the appellant had not shown any sign of repentance is pointed out, although there is a reference to his reporting to duty late on an earlier date on June 1, 1981. On going through the above record before the Court and taking into account all the attendant circumstances we are satisfied that the Director wished to make the ca se of the appellant an example for others including those other probationers who were similarly situated so that they may learn a lesson therefrom.A narration of the facts of the case leaves no doubt that the alleged act of misconduct on Jun e 22, 1981 was the real foundation for the action taken against the appellant and that the other instances stated in the course of the counter affidavit are mere allegations which are put forward only for purposes of strengthening the defence which is otherwise very weak. The case is one which attracted Article 311(2) of the Constitution as the impugned order amounts to a termination of service by way of punishment and an enquiry should have been held in accordance with the said constitutional provision. hat admittedly having not been done, the impugned order is liable t be struck down. | 1[ds]In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymansium acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries-were made behind the back of the appellant, only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If. On reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided ill Article 311(2) of the Constitution.The Union of India has placed before us all the relevant material including the recommendation of the Director of the National Police Academy that the appellant may be reinstated. In this case, as stated above, explanation was called for form the appellant and other probationers. Explanations were received and all the probationers including the appellant were individually interviewed in order to ascertain facts. Explanation submitted by him and the answers give by others had weighed with the Director before making the recommendation to the Government of India on the basis of which action was taken. The only ground which ultimately prevailed upon the Director was that the appellant had not shown any sign of repentance without informing him that h is case would be dealt with leniently if he showed an sign of repentance. In fact in the very first reply he gave to the Director on being asked about the incident which took place on June 22 1981, the appellant stated I sincerely regret the lapse, Neither in the letter which the Director first wrote to the Central Government nor in the counter affidavit filed in this Court, due importance has been given to the said expression of regret and it is further seen that no additional la pse on the part of the appellant between June 22, 1981 and the date on which the Director wrote the letter to the Central Government, which would show that the appellant had not shown any sign of repentance is pointed out, although there is a reference to his reporting to duty late on an earlier date on June 1, 1981. On going through the above record before the Court and taking into account all the attendant circumstances we are satisfied that the Director wished to make the ca se of the appellant an example for others including those other probationers who were similarly situated so that they may learn a lesson therefrom.A narration of the facts of the case leaves no doubt that the alleged act of misconduct on Jun e 22, 1981 was the real foundation for the action taken against the appellant and that the other instances stated in the course of the counter affidavit are mere allegations which are put forward only for purposes of strengthening the defence which is otherwise very weak. The case is one which attracted Article 311(2) of the Constitution as the impugned order amounts to a termination of service by way of punishment and an enquiry should have been held in accordance with the said constitutional provision. hat admittedly having not been done, the impugned order is liable t be struck down. We accordingly set aside the judgment of the High Court and the impugned order dated November 5, 1981 discharging the appellant from service. The appellant should now be reinstated in service with the same rank and seniority he was entitled to before the impugned order was passed as if it had not been passed at all. He is also entitled to all consequential benefits including the appropriate year of allotment and the arrears of salary and allowances upto the date of his reinstatementIt is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in t he form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee. | 1 | 4,603 | 924 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
judgment delivered by a Bench of seven Judges. As pointed out by us in all these cases including the case of Ran Chandra Trivedi (supra) the principle applied is the one enunciated by Parshotam Lal Dhingas case (supra) which we have referred to earlier. lt is urged relying upon the observation in Shri Sukh Raj Bahals case (supra) that it is only when there is a full scale Departmental enquiry envisaged by Article 311(2) of the Constitution i.e. an enquiry officer is appointed, a charge sheet submitted, explanation called for and considered, any termination made thereafter will, attract the operation of Artic le 311(2). It is significant that in the very same decision it is stated that the circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. As observed by Ray, C.J. in Shamsher Singhs case (supra) the form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article. 311(2).It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in t he form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee. 8. In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymansium acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries-were made behind the back of the appellant, only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If. On reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided ill Article 311(2) of the Constitution.The Union of India has placed before us all the relevant material including the recommendation of the Director of the National Police Academy that the appellant may be reinstated. In this case, as stated above, explanation was called for form the appellant and other probationers. Explanations were received and all the probationers including the appellant were individually interviewed in order to ascertain facts. Explanation submitted by him and the answers give by others had weighed with the Director before making the recommendation to the Government of India on the basis of which action was taken. The only ground which ultimately prevailed upon the Director was that the appellant had not shown any sign of repentance without informing him that h is case would be dealt with leniently if he showed an sign of repentance. In fact in the very first reply he gave to the Director on being asked about the incident which took place on June 22 1981, the appellant stated I sincerely regret the lapse, Neither in the letter which the Director first wrote to the Central Government nor in the counter affidavit filed in this Court, due importance has been given to the said expression of regret and it is further seen that no additional la pse on the part of the appellant between June 22, 1981 and the date on which the Director wrote the letter to the Central Government, which would show that the appellant had not shown any sign of repentance is pointed out, although there is a reference to his reporting to duty late on an earlier date on June 1, 1981. On going through the above record before the Court and taking into account all the attendant circumstances we are satisfied that the Director wished to make the ca se of the appellant an example for others including those other probationers who were similarly situated so that they may learn a lesson therefrom.A narration of the facts of the case leaves no doubt that the alleged act of misconduct on Jun e 22, 1981 was the real foundation for the action taken against the appellant and that the other instances stated in the course of the counter affidavit are mere allegations which are put forward only for purposes of strengthening the defence which is otherwise very weak. The case is one which attracted Article 311(2) of the Constitution as the impugned order amounts to a termination of service by way of punishment and an enquiry should have been held in accordance with the said constitutional provision. hat admittedly having not been done, the impugned order is liable t be struck down.
### Response:
1
### Explanation:
In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymansium acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries-were made behind the back of the appellant, only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If. On reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided ill Article 311(2) of the Constitution.The Union of India has placed before us all the relevant material including the recommendation of the Director of the National Police Academy that the appellant may be reinstated. In this case, as stated above, explanation was called for form the appellant and other probationers. Explanations were received and all the probationers including the appellant were individually interviewed in order to ascertain facts. Explanation submitted by him and the answers give by others had weighed with the Director before making the recommendation to the Government of India on the basis of which action was taken. The only ground which ultimately prevailed upon the Director was that the appellant had not shown any sign of repentance without informing him that h is case would be dealt with leniently if he showed an sign of repentance. In fact in the very first reply he gave to the Director on being asked about the incident which took place on June 22 1981, the appellant stated I sincerely regret the lapse, Neither in the letter which the Director first wrote to the Central Government nor in the counter affidavit filed in this Court, due importance has been given to the said expression of regret and it is further seen that no additional la pse on the part of the appellant between June 22, 1981 and the date on which the Director wrote the letter to the Central Government, which would show that the appellant had not shown any sign of repentance is pointed out, although there is a reference to his reporting to duty late on an earlier date on June 1, 1981. On going through the above record before the Court and taking into account all the attendant circumstances we are satisfied that the Director wished to make the ca se of the appellant an example for others including those other probationers who were similarly situated so that they may learn a lesson therefrom.A narration of the facts of the case leaves no doubt that the alleged act of misconduct on Jun e 22, 1981 was the real foundation for the action taken against the appellant and that the other instances stated in the course of the counter affidavit are mere allegations which are put forward only for purposes of strengthening the defence which is otherwise very weak. The case is one which attracted Article 311(2) of the Constitution as the impugned order amounts to a termination of service by way of punishment and an enquiry should have been held in accordance with the said constitutional provision. hat admittedly having not been done, the impugned order is liable t be struck down. We accordingly set aside the judgment of the High Court and the impugned order dated November 5, 1981 discharging the appellant from service. The appellant should now be reinstated in service with the same rank and seniority he was entitled to before the impugned order was passed as if it had not been passed at all. He is also entitled to all consequential benefits including the appropriate year of allotment and the arrears of salary and allowances upto the date of his reinstatementIt is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in t he form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.
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Collector of Central Excise, Coimbatore Vs. Messrs Protein Products of India Limited | in question is derived. Bone products does not mean that the products must contain visible pieces of bones and that the expression is limited only to the primary products obtained on crushing of bones such as bone sinew, bone grist, and bone meal. Reference was made to the description of gelatine in the Indian Standard Specifications as a "purified product obtained by partial hydrolysis of collagen, derived from skin, white connective tissues and bones of animals" and to a definition of collagen - the white fibers of the connective tissues of the animal body, particularly in the skin (corium), bones (ossein) and tendons". The Tribunal also referred to an earlier order wherein di-calcium phosphate, obtained by treating with acid the mineral portions separated from crushed bones, had been held entitled to the benefit of the same notification, treating it as a bone product.5. The learned Solicitor General, appearing on behalf of the appellant, submitted that the view taken by the Tribunal is erroneous. According to him, the words bone products should be read along with words crushed bones and, therefore, the exemption under the notification is only limited to primary products because they could also be obtained from raw material other than bones, such as pig skin and hides. What is essential, according to him, is to consider whether the products in question retain the principal characteristics and physical properties of crushed bones. On other words, the argument appears to be that only products obtained by a physical processing of bones could be described as bone products but not products obtained by treating bones with chemicals or acids. 6. We see no reason to limit the availability of the exemption under notification in the manner contended or on behalf of the appellant. The terms of the notification only refer to two items-crushed bones and bone products and there is no scope for applying any rule of ejusdem generis as contended for by the learned Solicitor General. There is also no justification for importing any limitation as to the nature of the products that are entitled to exemption. We see no logic or principle i holding that only products obtained by a physical treatment of bones such as crushing or powdering would be entitled to exemption and not products obtained by chemical treatment. It is true that as gelatine may be produced not merely from bones but also other things such as the skin and tissues of animals. But, us already mentioned, it is not in dispute that only bones are the raw material from which the products manufactured by the respondent company are derived. It is not the case of the appellant that in the manufacture of gelatine or ossein, other raw materials are also use to such an extent as to completely overshadow or render insignificant the utilisation of bones in the process.. 7. The products in question are derived merely by the extraction of the mineral parts of the bones. Gelatine is obtained by a further treatment, within alkali, of the ossein manufactured from the bones. It is the collegen which forms the organic content of the bones that is utilised in the manufacture of ossein and gelatine. The word products is defined in Websters Comprehensive Dictionary as "anything produced or obtained as a result of some operation or work". The expression bone products therefore merely means anything produced or obtained from bones. Whether such derivation is by a simple physical process or by a chemical reaction would seem to make no difference to the end product. Buttermilk, for instance, does not cease to be a milk product merely because a chemical process is involved in the transformation. The ossein and gelatine manufactured by the respondent can, without straining the expression used in the notification, be described as bone products. We are, therefore, in agreement with the view taken by the Tribunal that the products manufactured by the respondent company are entitled to the exemption under the notification dated June 30, 1979 8. We may also here usefully reiterate the observations made by us in Collector of Customs, Bombay v. Swastic Woollen (P) Ltd. with regard to the parameters of interference by this Court in an appeal from the CEGAT. That case concerned the meaning of the expression "wool waste" and, though those observations were made in the context of Section 130-E of the Customs Act, 1962, they are of equal application in the present context as well. We said : (SCC p. 801, para 9) "In the new scheme of things, the Tribunals have been entrusted with the authority and the jurisdiction to decide the questions involving determination of the rate of duty of excise or to the value of goods for purposes of assessment. An appeal has been provided to this Court to oversee that the subordinate Tribunals act within the law. Merely because another view might be possible by a competent court of law is no ground for interference under Section 130-E of the Act though in relation to the rate of duty of customs or to the value of goods for purposes of assessment, the amplitude of appeal is unlimited. But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals. The Tribunal has not deviated from the path of correct principle and has considered all the relevant factor. If the Tribunal has acted bona fide with natural justice by a speaking under, in our opinion, even if superior court feels that another view is possible, that is no ground for substitution of that view in exercise of power under clause (b) of Section 130-E of the Act." >9. In the present case the Tribunal has taken into consideration all relevant factor and committed no error of principle or law. Even assuming that the terms of the exemption notification can also lend themselves to a narrower construction which may commend itself to another Tribunal or court that alone can be no ground to interfere with the conclusion reached by the Tribunal. | 0[ds]6. We see no reason to limit the availability of the exemption under notification in the manner contended or on behalf of the appellant. The terms of the notification only refer to twobones and bone products and there is no scope for applying any rule of ejusdem generis as contended for by the learned Solicitor General. There is also no justification for importing any limitation as to the nature of the products that are entitled to exemption. We see no logic or principle i holding that only products obtained by a physical treatment of bones such as crushing or powdering would be entitled to exemption and not products obtained by chemical treatment. It is true that as gelatine may be produced not merely from bones but also other things such as the skin and tissues of animals. But, us already mentioned, it is not in dispute that only bones are the raw material from which the products manufactured by the respondent company are derived. It is not the case of the appellant that in the manufacture of gelatine or ossein, other raw materials are also use to such an extent as to completely overshadow or render insignificant the utilisation of bones in thethe Tribunal has acted bona fide with natural justice by a speaking under, in our opinion, even if superior court feels that another view is possible, that is no ground for substitution of that view in exercise of power under clause (b) of Section>9. In the present case the Tribunal has taken into consideration all relevant factor and committed no error of principle or law. Even assuming that the terms of the exemption notification can also lend themselves to a narrower construction which may commend itself to another Tribunal or court that alone can be no ground to interfere with the conclusion reached by the Tribunal | 0 | 1,379 | 331 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
in question is derived. Bone products does not mean that the products must contain visible pieces of bones and that the expression is limited only to the primary products obtained on crushing of bones such as bone sinew, bone grist, and bone meal. Reference was made to the description of gelatine in the Indian Standard Specifications as a "purified product obtained by partial hydrolysis of collagen, derived from skin, white connective tissues and bones of animals" and to a definition of collagen - the white fibers of the connective tissues of the animal body, particularly in the skin (corium), bones (ossein) and tendons". The Tribunal also referred to an earlier order wherein di-calcium phosphate, obtained by treating with acid the mineral portions separated from crushed bones, had been held entitled to the benefit of the same notification, treating it as a bone product.5. The learned Solicitor General, appearing on behalf of the appellant, submitted that the view taken by the Tribunal is erroneous. According to him, the words bone products should be read along with words crushed bones and, therefore, the exemption under the notification is only limited to primary products because they could also be obtained from raw material other than bones, such as pig skin and hides. What is essential, according to him, is to consider whether the products in question retain the principal characteristics and physical properties of crushed bones. On other words, the argument appears to be that only products obtained by a physical processing of bones could be described as bone products but not products obtained by treating bones with chemicals or acids. 6. We see no reason to limit the availability of the exemption under notification in the manner contended or on behalf of the appellant. The terms of the notification only refer to two items-crushed bones and bone products and there is no scope for applying any rule of ejusdem generis as contended for by the learned Solicitor General. There is also no justification for importing any limitation as to the nature of the products that are entitled to exemption. We see no logic or principle i holding that only products obtained by a physical treatment of bones such as crushing or powdering would be entitled to exemption and not products obtained by chemical treatment. It is true that as gelatine may be produced not merely from bones but also other things such as the skin and tissues of animals. But, us already mentioned, it is not in dispute that only bones are the raw material from which the products manufactured by the respondent company are derived. It is not the case of the appellant that in the manufacture of gelatine or ossein, other raw materials are also use to such an extent as to completely overshadow or render insignificant the utilisation of bones in the process.. 7. The products in question are derived merely by the extraction of the mineral parts of the bones. Gelatine is obtained by a further treatment, within alkali, of the ossein manufactured from the bones. It is the collegen which forms the organic content of the bones that is utilised in the manufacture of ossein and gelatine. The word products is defined in Websters Comprehensive Dictionary as "anything produced or obtained as a result of some operation or work". The expression bone products therefore merely means anything produced or obtained from bones. Whether such derivation is by a simple physical process or by a chemical reaction would seem to make no difference to the end product. Buttermilk, for instance, does not cease to be a milk product merely because a chemical process is involved in the transformation. The ossein and gelatine manufactured by the respondent can, without straining the expression used in the notification, be described as bone products. We are, therefore, in agreement with the view taken by the Tribunal that the products manufactured by the respondent company are entitled to the exemption under the notification dated June 30, 1979 8. We may also here usefully reiterate the observations made by us in Collector of Customs, Bombay v. Swastic Woollen (P) Ltd. with regard to the parameters of interference by this Court in an appeal from the CEGAT. That case concerned the meaning of the expression "wool waste" and, though those observations were made in the context of Section 130-E of the Customs Act, 1962, they are of equal application in the present context as well. We said : (SCC p. 801, para 9) "In the new scheme of things, the Tribunals have been entrusted with the authority and the jurisdiction to decide the questions involving determination of the rate of duty of excise or to the value of goods for purposes of assessment. An appeal has been provided to this Court to oversee that the subordinate Tribunals act within the law. Merely because another view might be possible by a competent court of law is no ground for interference under Section 130-E of the Act though in relation to the rate of duty of customs or to the value of goods for purposes of assessment, the amplitude of appeal is unlimited. But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals. The Tribunal has not deviated from the path of correct principle and has considered all the relevant factor. If the Tribunal has acted bona fide with natural justice by a speaking under, in our opinion, even if superior court feels that another view is possible, that is no ground for substitution of that view in exercise of power under clause (b) of Section 130-E of the Act." >9. In the present case the Tribunal has taken into consideration all relevant factor and committed no error of principle or law. Even assuming that the terms of the exemption notification can also lend themselves to a narrower construction which may commend itself to another Tribunal or court that alone can be no ground to interfere with the conclusion reached by the Tribunal.
### Response:
0
### Explanation:
6. We see no reason to limit the availability of the exemption under notification in the manner contended or on behalf of the appellant. The terms of the notification only refer to twobones and bone products and there is no scope for applying any rule of ejusdem generis as contended for by the learned Solicitor General. There is also no justification for importing any limitation as to the nature of the products that are entitled to exemption. We see no logic or principle i holding that only products obtained by a physical treatment of bones such as crushing or powdering would be entitled to exemption and not products obtained by chemical treatment. It is true that as gelatine may be produced not merely from bones but also other things such as the skin and tissues of animals. But, us already mentioned, it is not in dispute that only bones are the raw material from which the products manufactured by the respondent company are derived. It is not the case of the appellant that in the manufacture of gelatine or ossein, other raw materials are also use to such an extent as to completely overshadow or render insignificant the utilisation of bones in thethe Tribunal has acted bona fide with natural justice by a speaking under, in our opinion, even if superior court feels that another view is possible, that is no ground for substitution of that view in exercise of power under clause (b) of Section>9. In the present case the Tribunal has taken into consideration all relevant factor and committed no error of principle or law. Even assuming that the terms of the exemption notification can also lend themselves to a narrower construction which may commend itself to another Tribunal or court that alone can be no ground to interfere with the conclusion reached by the Tribunal
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Commissioner of Income Tax, Delhi (Now Rajasthan) Vs. Mewar Textile Mills Limited Bhilwara, Rajasthan | Hegde, J.1. This is an appeal by certificate. It has a long history. The assessment with which we are concerned relates to the assessment year 1943-44. This case along with other cases appears to have come in this Court earlier and the matter was remanded to the High Court for disposal in accordance with the directions given by this Court. Thereafter, the High Court called for a supplementary statement from the Tribunal. The Tribunal, after setting out the material facts, has referred the following question to the High Court :"Whether the Tribunal was right in its finding that the assessee would not be liable to tax in respect of the goods sold by the assessee on railway receipts in the names of the consignees to the tune of Rs 2,73,488/- effected in the assessment year 1943-44?"The High Court has answered that question in the affirmative in favour of the assessee.2. The assessee is a dealer in cloth in the Bhilwara town in one of the former Indian States. He sold certain bales of cloth to dealers in the then British India. The total price realised in respect of those sales in the assessment year in question was Rs. 2,73,488/-. The question for consideration is whether the profits earned by those sales are taxable in British India.3. The Tribunal came to the conclusion that the sales were effected at Bhilwara. The title to those properties sold passed to the purchasers at Bhilwara itself. The goods were put on rail at Bhilwara and the railway receipts were taken in the names of the consignees and sent to them by post. It cannot be disputed that the purchasers became the owners of the cloth purchased at Bhilwara itself. This is also the finding of the Tribunal. From this it follows that the sales in question took place outside British India. The only other question that remains to be considered is whether the income was realised in British India. As mentioned earlier, the railway receipts were sent by the assessee to his customers in British India by post. After receiving the railway receipts, the purchasers appear to have paid the sale price to a banker who is the banker of the assessee as well. The question for consideration is whether the banker received the money on behalf of the assessee or on behalf of the purchaser. The Tribunal has come to the conclusion that the banker was the agent of the purchasers and not the agent of the assessee. This again is a finding of fact. The mere fact that the banker was also a banker of the assessee does not go to show that the banker realised amount as agent of the assessee. The Department appears to have failed to establish the fact that the banker functioned as the agent of the assessee. If the banker had functioned as agent of the purchaser, then it cannot be said that any part of the income was realised in British India. Mr. T. A. Ramachandran, learned counsel for the Revenue, sought to establish from the record that the finding of the Tribunal is factually wrong. That is not a question that we can go into at this stage. | 0[ds]3. The Tribunal came to the conclusion that the sales were effected at Bhilwara. The title to those properties sold passed to the purchasers at Bhilwara itself. The goods were put on rail at Bhilwara and the railway receipts were taken in the names of the consignees and sent to them by post. It cannot be disputed that the purchasers became the owners of the cloth purchased at Bhilwara itself. This is also the finding of the Tribunal. From this it follows that the sales in question took place outside British India. The only other question that remains to be considered is whether the income was realised in British India. As mentioned earlier, the railway receipts were sent by the assessee to his customers in British India by post. After receiving the railway receipts, the purchasers appear to have paid the sale price to a banker who is the banker of the assessee as well. The question for consideration is whether the banker received the money on behalf of the assessee or on behalf of the purchaser. The Tribunal has come to the conclusion that the banker was the agent of the purchasers and not the agent of the assessee. This again is a finding of fact. The mere fact that the banker was also a banker of the assessee does not go to show that the banker realised amount as agent of the assessee. The Department appears to have failed to establish the fact that the banker functioned as the agent of the assessee. If the banker had functioned as agent of the purchaser, then it cannot be said that any part of the income was realised in British India. Mr. T. A. Ramachandran, learned counsel for the Revenue, sought to establish from the record that the finding of the Tribunal is factually wrong. That is not a question that we can go into at this stage. | 0 | 578 | 347 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
Hegde, J.1. This is an appeal by certificate. It has a long history. The assessment with which we are concerned relates to the assessment year 1943-44. This case along with other cases appears to have come in this Court earlier and the matter was remanded to the High Court for disposal in accordance with the directions given by this Court. Thereafter, the High Court called for a supplementary statement from the Tribunal. The Tribunal, after setting out the material facts, has referred the following question to the High Court :"Whether the Tribunal was right in its finding that the assessee would not be liable to tax in respect of the goods sold by the assessee on railway receipts in the names of the consignees to the tune of Rs 2,73,488/- effected in the assessment year 1943-44?"The High Court has answered that question in the affirmative in favour of the assessee.2. The assessee is a dealer in cloth in the Bhilwara town in one of the former Indian States. He sold certain bales of cloth to dealers in the then British India. The total price realised in respect of those sales in the assessment year in question was Rs. 2,73,488/-. The question for consideration is whether the profits earned by those sales are taxable in British India.3. The Tribunal came to the conclusion that the sales were effected at Bhilwara. The title to those properties sold passed to the purchasers at Bhilwara itself. The goods were put on rail at Bhilwara and the railway receipts were taken in the names of the consignees and sent to them by post. It cannot be disputed that the purchasers became the owners of the cloth purchased at Bhilwara itself. This is also the finding of the Tribunal. From this it follows that the sales in question took place outside British India. The only other question that remains to be considered is whether the income was realised in British India. As mentioned earlier, the railway receipts were sent by the assessee to his customers in British India by post. After receiving the railway receipts, the purchasers appear to have paid the sale price to a banker who is the banker of the assessee as well. The question for consideration is whether the banker received the money on behalf of the assessee or on behalf of the purchaser. The Tribunal has come to the conclusion that the banker was the agent of the purchasers and not the agent of the assessee. This again is a finding of fact. The mere fact that the banker was also a banker of the assessee does not go to show that the banker realised amount as agent of the assessee. The Department appears to have failed to establish the fact that the banker functioned as the agent of the assessee. If the banker had functioned as agent of the purchaser, then it cannot be said that any part of the income was realised in British India. Mr. T. A. Ramachandran, learned counsel for the Revenue, sought to establish from the record that the finding of the Tribunal is factually wrong. That is not a question that we can go into at this stage.
### Response:
0
### Explanation:
3. The Tribunal came to the conclusion that the sales were effected at Bhilwara. The title to those properties sold passed to the purchasers at Bhilwara itself. The goods were put on rail at Bhilwara and the railway receipts were taken in the names of the consignees and sent to them by post. It cannot be disputed that the purchasers became the owners of the cloth purchased at Bhilwara itself. This is also the finding of the Tribunal. From this it follows that the sales in question took place outside British India. The only other question that remains to be considered is whether the income was realised in British India. As mentioned earlier, the railway receipts were sent by the assessee to his customers in British India by post. After receiving the railway receipts, the purchasers appear to have paid the sale price to a banker who is the banker of the assessee as well. The question for consideration is whether the banker received the money on behalf of the assessee or on behalf of the purchaser. The Tribunal has come to the conclusion that the banker was the agent of the purchasers and not the agent of the assessee. This again is a finding of fact. The mere fact that the banker was also a banker of the assessee does not go to show that the banker realised amount as agent of the assessee. The Department appears to have failed to establish the fact that the banker functioned as the agent of the assessee. If the banker had functioned as agent of the purchaser, then it cannot be said that any part of the income was realised in British India. Mr. T. A. Ramachandran, learned counsel for the Revenue, sought to establish from the record that the finding of the Tribunal is factually wrong. That is not a question that we can go into at this stage.
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SHODA DEVI Vs. DDU/RIPON HOSPITAL SHIMLA | used as it was a one-time prick for the procedure, yet it should have been used to prevent mishaps. We find no infirmity in the findings of the National Commission, in so far the issue of medical negligence is concerned. However, after having recorded clear findings on medical negligence and after taking note of the aforementioned directions of the State Commission regarding ex gratia payment, the National Commission considered it proper to award to the appellant an additional compensation to the tune of Rs. 2,00,000/-. The question is: as to whether the amount so awarded to the appellant is that of just and reasonable compensation? 15. As regards the quantum of compensation in such cases, it is noticed that in the case of Alfred Benddict v. Manipal Hospital: (2015) 11 SCC 423 , where, for the reason of medical negligence, a 2-year-old girl developed gangrene in right arm which resulted in its amputation, this Court, considering the age of the child and her life-long suffering, be it her education or marriage prospects, awarded a lump sum of Rs. 20,00,000/- as compensation. Likewise, in the case of Nizams Institute of Medical Sciences (supra), where the complainant had suffered paraplegia as an outcome of the surgery and was thereafter confined to a wheelchair, this Court pointed out some of the factors that weigh in while quantifying compensation in such cases. This Court, inter alia, observed as under:-?90. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis-à-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. 91. We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself. 92. Mr. Tandale, the learned counsel for the respondent has, further submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method.?16. In the ultimate analysis, the requirement in such cases of disablement due to medical negligence is of awarding just and reasonable compensation to the victim, while keeping in view the pecuniary damages as also the non- pecuniary damages like pain and suffering and loss of amenities of life. 16.1 On the facts that have come on record, it appears that the appellant was 45 years of age when she suffered the medical negligence and consequences thereof, leading to amputation of her right arm. It is also apparent that the appellant comes from a very poor and rural background and is covered under Integrated Rural Development Programme. The National Commission, even after finding this one to be a case of medical negligence leading to amputation of right arm, quantified the amount of compensation only at Rs. 2,00,000/-. Even if the ex gratia proposed before the State Commission and the amount awarded by the National Commission are taken together, the total compensation to the appellant comes to Rs. 4,93,526/- only. 16.2 We are constrained to observe that the National Commission, even after appreciating the troubles and trauma as also disablement and disadvantage suffered by the appellant, had been too restrictive in award of compensation. Ordinarily, the general damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for the human beings and the award of compensation cannot go restrictive when the victim is coming from a poor and rural background; rather, in a given case like that of the appellant, such a background of the victim may guide the adjudicatory process towards reasonably higher amount of compensation (of course, after having regard to all the attending circumstances). 16.3 Such granting of reasonability higher amount of compensation in the present case appears necessary to serve dual purposes: one, to provide some succour and support to the appellant against the hardship and disadvantage due to amputation of right arm; and second, to send the message to the professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all the human beings deserve to be treated with equal respect and sensitivity. We are impelled to make these observations in the context of an uncomfortable fact indicated on record that when the appellant was writhing in pain, she was not immediately attended at and was snubbed with the retort that ‘the people from hilly areas make unnecessary noise?. Such remarks, obviously, added insult to the injury and were least expected of the professionals on public duties. 16.4. Apart from the above, when the appellant is shown to be a poor lady from rural background, her contribution in ensuring the family meeting both ends also deserves due consideration. With her disablement and reduced contribution, the amount of compensation ought to be of such level as to provide relief in reasonable monetary terms to the appellant and to her family. | 1[ds]13. Having heard learned counsel for the parties and having examined the record, we are clearly of the view of that while the findings on medical negligence on the part of the respondents do not call for any interference, a clear case for enhancement of the amount of compensation is made out.On perusing the order of the State Commission, it is but apparent that the State Commission though recorded that with the onset of gangrene, amputation of the right arm of the appellant was carried out with a view to save her life but dismissed the complaint on rather untenable grounds like that the surgery would not have been successful if sedation was not complete and proper; and that the appellant was referred to another hospital for more effective treatment after all the efforts at the respondent hospital were exhausted. In appeal, the National Commission minutely examined the evidence on record and concluded on the medical negligence of respondents for several counts such as: not providing or making arrangements for an ambulance for proper shifting of the appellant; not attending on the appellant at the first instance on her complaint about unbearable pain and the delay having aggravated the ischemic process; and though cannula was not used as it was a one-time prick for the procedure, yet it should have been used to prevent mishaps. We find no infirmity in the findings of the National Commission, in so far the issue of medical negligence is concerned. However, after having recorded clear findings on medical negligence and after taking note of the aforementioned directions of the State Commission regarding ex gratia payment, the National Commission considered it proper to award to the appellant an additional compensation to the tune of Rs. 2,00,000/-.As regards the quantum of compensation in such cases, it is noticed that in the case of Alfred Benddict v. Manipal Hospital: (2015) 11 SCC 423 , where, for the reason of medical negligence, a 2-year-old girl developed gangrene in right arm which resulted in its amputation, this Court, considering the age of the child and her life-long suffering, be it her education or marriage prospects, awarded a lump sum of Rs. 20,00,000/- as compensation. Likewise, in the case of Nizams Institute of Medical Sciences (supra), where the complainant had suffered paraplegia as an outcome of the surgery and was thereafter confined to a wheelchair, this Court pointed out some of the factors that weigh in while quantifying compensation in such cases.In the ultimate analysis, the requirement in such cases of disablement due to medical negligence is of awarding just and reasonable compensation to the victim, while keeping in view the pecuniary damages as also the non- pecuniary damages like pain and suffering and loss of amenities ofOn the facts that have come on record, it appears that the appellant was 45 years of age when she suffered the medical negligence and consequences thereof, leading to amputation of her right arm. It is also apparent that the appellant comes from a very poor and rural background and is covered under Integrated Rural Development Programme. The National Commission, even after finding this one to be a case of medical negligence leading to amputation of right arm, quantified the amount of compensation only at Rs. 2,00,000/-. Even if the ex gratia proposed before the State Commission and the amount awarded by the National Commission are taken together, the total compensation to the appellant comes to Rs. 4,93,526/-We are constrained to observe that the National Commission, even after appreciating the troubles and trauma as also disablement and disadvantage suffered by the appellant, had been too restrictive in award of compensation. Ordinarily, the general damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for the human beings and the award of compensation cannot go restrictive when the victim is coming from a poor and rural background; rather, in a given case like that of the appellant, such a background of the victim may guide the adjudicatory process towards reasonably higher amount of compensation (of course, after having regard to all the attendingApart from the above, when the appellant is shown to be a poor lady from rural background, her contribution in ensuring the family meeting both ends also deserves due consideration. With her disablement and reduced contribution, the amount of compensation ought to be of such level as to provide relief in reasonable monetary terms to the appellant and to her family. | 1 | 3,217 | 812 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
used as it was a one-time prick for the procedure, yet it should have been used to prevent mishaps. We find no infirmity in the findings of the National Commission, in so far the issue of medical negligence is concerned. However, after having recorded clear findings on medical negligence and after taking note of the aforementioned directions of the State Commission regarding ex gratia payment, the National Commission considered it proper to award to the appellant an additional compensation to the tune of Rs. 2,00,000/-. The question is: as to whether the amount so awarded to the appellant is that of just and reasonable compensation? 15. As regards the quantum of compensation in such cases, it is noticed that in the case of Alfred Benddict v. Manipal Hospital: (2015) 11 SCC 423 , where, for the reason of medical negligence, a 2-year-old girl developed gangrene in right arm which resulted in its amputation, this Court, considering the age of the child and her life-long suffering, be it her education or marriage prospects, awarded a lump sum of Rs. 20,00,000/- as compensation. Likewise, in the case of Nizams Institute of Medical Sciences (supra), where the complainant had suffered paraplegia as an outcome of the surgery and was thereafter confined to a wheelchair, this Court pointed out some of the factors that weigh in while quantifying compensation in such cases. This Court, inter alia, observed as under:-?90. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis-à-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. 91. We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself. 92. Mr. Tandale, the learned counsel for the respondent has, further submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method.?16. In the ultimate analysis, the requirement in such cases of disablement due to medical negligence is of awarding just and reasonable compensation to the victim, while keeping in view the pecuniary damages as also the non- pecuniary damages like pain and suffering and loss of amenities of life. 16.1 On the facts that have come on record, it appears that the appellant was 45 years of age when she suffered the medical negligence and consequences thereof, leading to amputation of her right arm. It is also apparent that the appellant comes from a very poor and rural background and is covered under Integrated Rural Development Programme. The National Commission, even after finding this one to be a case of medical negligence leading to amputation of right arm, quantified the amount of compensation only at Rs. 2,00,000/-. Even if the ex gratia proposed before the State Commission and the amount awarded by the National Commission are taken together, the total compensation to the appellant comes to Rs. 4,93,526/- only. 16.2 We are constrained to observe that the National Commission, even after appreciating the troubles and trauma as also disablement and disadvantage suffered by the appellant, had been too restrictive in award of compensation. Ordinarily, the general damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for the human beings and the award of compensation cannot go restrictive when the victim is coming from a poor and rural background; rather, in a given case like that of the appellant, such a background of the victim may guide the adjudicatory process towards reasonably higher amount of compensation (of course, after having regard to all the attending circumstances). 16.3 Such granting of reasonability higher amount of compensation in the present case appears necessary to serve dual purposes: one, to provide some succour and support to the appellant against the hardship and disadvantage due to amputation of right arm; and second, to send the message to the professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all the human beings deserve to be treated with equal respect and sensitivity. We are impelled to make these observations in the context of an uncomfortable fact indicated on record that when the appellant was writhing in pain, she was not immediately attended at and was snubbed with the retort that ‘the people from hilly areas make unnecessary noise?. Such remarks, obviously, added insult to the injury and were least expected of the professionals on public duties. 16.4. Apart from the above, when the appellant is shown to be a poor lady from rural background, her contribution in ensuring the family meeting both ends also deserves due consideration. With her disablement and reduced contribution, the amount of compensation ought to be of such level as to provide relief in reasonable monetary terms to the appellant and to her family.
### Response:
1
### Explanation:
13. Having heard learned counsel for the parties and having examined the record, we are clearly of the view of that while the findings on medical negligence on the part of the respondents do not call for any interference, a clear case for enhancement of the amount of compensation is made out.On perusing the order of the State Commission, it is but apparent that the State Commission though recorded that with the onset of gangrene, amputation of the right arm of the appellant was carried out with a view to save her life but dismissed the complaint on rather untenable grounds like that the surgery would not have been successful if sedation was not complete and proper; and that the appellant was referred to another hospital for more effective treatment after all the efforts at the respondent hospital were exhausted. In appeal, the National Commission minutely examined the evidence on record and concluded on the medical negligence of respondents for several counts such as: not providing or making arrangements for an ambulance for proper shifting of the appellant; not attending on the appellant at the first instance on her complaint about unbearable pain and the delay having aggravated the ischemic process; and though cannula was not used as it was a one-time prick for the procedure, yet it should have been used to prevent mishaps. We find no infirmity in the findings of the National Commission, in so far the issue of medical negligence is concerned. However, after having recorded clear findings on medical negligence and after taking note of the aforementioned directions of the State Commission regarding ex gratia payment, the National Commission considered it proper to award to the appellant an additional compensation to the tune of Rs. 2,00,000/-.As regards the quantum of compensation in such cases, it is noticed that in the case of Alfred Benddict v. Manipal Hospital: (2015) 11 SCC 423 , where, for the reason of medical negligence, a 2-year-old girl developed gangrene in right arm which resulted in its amputation, this Court, considering the age of the child and her life-long suffering, be it her education or marriage prospects, awarded a lump sum of Rs. 20,00,000/- as compensation. Likewise, in the case of Nizams Institute of Medical Sciences (supra), where the complainant had suffered paraplegia as an outcome of the surgery and was thereafter confined to a wheelchair, this Court pointed out some of the factors that weigh in while quantifying compensation in such cases.In the ultimate analysis, the requirement in such cases of disablement due to medical negligence is of awarding just and reasonable compensation to the victim, while keeping in view the pecuniary damages as also the non- pecuniary damages like pain and suffering and loss of amenities ofOn the facts that have come on record, it appears that the appellant was 45 years of age when she suffered the medical negligence and consequences thereof, leading to amputation of her right arm. It is also apparent that the appellant comes from a very poor and rural background and is covered under Integrated Rural Development Programme. The National Commission, even after finding this one to be a case of medical negligence leading to amputation of right arm, quantified the amount of compensation only at Rs. 2,00,000/-. Even if the ex gratia proposed before the State Commission and the amount awarded by the National Commission are taken together, the total compensation to the appellant comes to Rs. 4,93,526/-We are constrained to observe that the National Commission, even after appreciating the troubles and trauma as also disablement and disadvantage suffered by the appellant, had been too restrictive in award of compensation. Ordinarily, the general damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for the human beings and the award of compensation cannot go restrictive when the victim is coming from a poor and rural background; rather, in a given case like that of the appellant, such a background of the victim may guide the adjudicatory process towards reasonably higher amount of compensation (of course, after having regard to all the attendingApart from the above, when the appellant is shown to be a poor lady from rural background, her contribution in ensuring the family meeting both ends also deserves due consideration. With her disablement and reduced contribution, the amount of compensation ought to be of such level as to provide relief in reasonable monetary terms to the appellant and to her family.
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D. Papiah Vs. Mysore State Transport Appellate Tribunal and Others | Pradesh State Road Transport Corpn. ([1961] 1 S.C.R. 642 (644).) this Court observed: "There is no inherent in consistency between an "area" and a "route". The proposed route is also an area limited to the route proposed." A similar observation was made in C.P.C. Motor Service, Mysore v. The State of Mysore(1962 Supp. (1) S.C.R. 717 (725).) that in the scheme of the Act, by the word "route" is meant "not only the notional line but also the actual road over which the omnibuses run". Of course, it would not be correct to say that the Act recognizes no distinction between route and area. A route may mea n not only the notional line of travel between one terminus and another, but also the area of the road over which the motor vehicles ply, yet the two terms are not interchangeable; as pointed out in C.P. Sikh Regular Motor Service etc. v. The State of Maharashtra, ([1975] 2 S.C.R. 10.) "a route is an area plus something more". This "something" is the notional line of travel between two termini which distinguishes a route from an area simpliciter. The first proviso to section 45(1) speaks of "route or area" apparently making a distinction between them to cover applications relatable to either. A contract carriage does not ply along a fixed route or routes but over an area, which is why an application for a contract carriage permit has to contain a statement as to the proposed area.All the decisions to which we have referred above have taken the view that by area is meant the road, the physical tract, over which the motor vehicles ply without reference to any notional line of travel. Of course, this meaning was given to the word area in the context of the provisions of the Act considered in these cases, in none of which section 45 came up for consideration. We do not however find any reason to think that area in section 45 (1) has a different connotation. Except that the territorial jurisdiction of the regional transport authorities is fixed in terms of geographical area-district wise in the State of Karnataka-area in that wider sense is irrelevant to the purposes of the Act. Counsel for the respondent, Mysore State Road Transport Corporation, Bangalore, built an argument on the provisions of section 12 of the Act that the meaning of area is not restricted only to the area of motorable roads in a region. Section 42 prohibits the use of a transport vehicle in a ny public place except in accordance with the conditions of a valid permit. A transport vehicle includes a motor vehicle used for the carriage of passengers [section 2(33) and section 2(25). Public place has been defined by section 2(24) of the Act as "road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage". It was argued that a contra ct carriage which does not ply on a fixed route could be used in any public place which need not necessarily be a road; this, according to counsel, indicated that the word area occurring in section 45(1) meant geographical area and not motorable roads only. We do not find it possible to accept this contention. Assuming that a contract carriage could be used in places which are not really roads, the fact remains that a contract carriage being a motor vehicle is intended for use upon roads, and any casual use of it in places other than roads is not decisive on the interpretation of the word area. The prohibition against the use of transport vehicles in public places which are not roads serves to repel a possible claim that for using a motor vehicle in places which cannot be called roads no permit was necessary. We hold therefore that the word area in the first proviso to section 45(1) of the Act means the area of motorable roads within the territorial jurisdictio n of a regional transport authority. The Regional Transport Authority, Mandya, held that it had within its jurisdiction the largest area of motorable roads in the State of Karnataka, and this finding has not been disturbed by the appellate tribunal. The appellate tribunal thought that the expression "motorable roads" was vague as the area comprising of motorable roads would be changing from time to time", but the jurisdiction of a regional transport authority to grant an inter-regiona l permit depends on the existing area of motorable roads when an application for a permit is made.In the course of arguments before us doubts were expressed on the reasonableness of a provision which requires an application for an inter-regional permit to be made to the regional transport authority of the region in which the major portion of the proposed route or area lies when section 63 of the Act provides elaborate checks and lays down conditions for the validation of permits for use outside the region in which it has been granted. It was submitted that in view of the provisions of section 63 there was no point in insisting on the application being made to the Regional Transport Authority of any particular region. We see the logic of this submission, but this is a matter of policy on which the court has no say. However, the policy itself does not appear to have been stated very clearly. On the provisions as they are it is difficult to say that the construction put forward on behalf of the third respondent is altogether implausible. It is also true that there can be practical difficulties, whichever interpretation was adopted. This being the position we should have thought that instead of leaving the law in such a slippery state, the State should clarify it by appropriate legislation so that the law may be clear and easily ascertainable by the concerned section of the public.5. | 1[ds]All the decisions to which we have referred above have taken the view that by area is meant the road, the physical tract, over which the motor vehicles ply without reference to any notional line of travel. Of course, this meaning was given to the word area in the context of the provisions of the Act considered in these cases, in none of which section 45 came up for consideration. We do not however find any reason to think that area in section 45 (1) has a different connotation. Except that the territorial jurisdiction of the regional transport authorities is fixed in terms of geographical area-district wise in the State of Karnataka-area in that wider sense is irrelevant to the purposes of the42 prohibits the use of a transport vehicle in a ny public place except in accordance with the conditions of a valid permit. A transport vehicle includes a motor vehicle used for the carriage of passengers [section 2(33) and section 2(25). Public place has been defined by section 2(24) of the Act as "road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stagedo not find it possible to accept this contention. Assuming that a contract carriage could be used in places which are not really roads, the fact remains that a contract carriage being a motor vehicle is intended for use upon roads, and any casual use of it in places other than roads is not decisive on the interpretation of the word area. The prohibition against the use of transport vehicles in public places which are not roads serves to repel a possible claim that for using a motor vehicle in places which cannot be called roads no permit was necessary. We hold therefore that the word area in the first proviso to section 45(1) of the Act means the area of motorable roads within the territorial jurisdictio n of a regional transport authority. The Regional Transport Authority, Mandya, held that it had within its jurisdiction the largest area of motorable roads in the State of Karnataka, and this finding has not been disturbed by the appellate tribunal. The appellate tribunal thought that the expression "motorable roads" was vague as the area comprising of motorable roads would be changing from time to time", but the jurisdiction of a regional transport authority to grant an inter-regiona l permit depends on the existing area of motorable roads when an application for a permit is made.In the course of arguments before us doubts were expressed on the reasonableness of a provision which requires an application for an inter-regional permit to be made to the regional transport authority of the region in which the major portion of the proposed route or area lies when section 63 of the Act provides elaborate checks and lays down conditions for the validation of permits for use outside the region in which it has been granted. It was submitted that in view of the provisions of section 63 there was no point in insisting on the application being made to the Regional Transport Authority of any particular region. We see the logic of this submission, but this is a matter of policy on which the court has no say. However, the policy itself does not appear to have been stated very clearly. On the provisions as they are it is difficult to say that the construction put forward on behalf of the third respondent is altogether implausible. It is also true that there can be practical difficulties, whichever interpretation was adopted. This being the position we should have thought that instead of leaving the law in such a slippery state, the State should clarify it by appropriate legislation so that the law may be clear and easily ascertainable by the concerned section of the public. | 1 | 2,367 | 718 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
Pradesh State Road Transport Corpn. ([1961] 1 S.C.R. 642 (644).) this Court observed: "There is no inherent in consistency between an "area" and a "route". The proposed route is also an area limited to the route proposed." A similar observation was made in C.P.C. Motor Service, Mysore v. The State of Mysore(1962 Supp. (1) S.C.R. 717 (725).) that in the scheme of the Act, by the word "route" is meant "not only the notional line but also the actual road over which the omnibuses run". Of course, it would not be correct to say that the Act recognizes no distinction between route and area. A route may mea n not only the notional line of travel between one terminus and another, but also the area of the road over which the motor vehicles ply, yet the two terms are not interchangeable; as pointed out in C.P. Sikh Regular Motor Service etc. v. The State of Maharashtra, ([1975] 2 S.C.R. 10.) "a route is an area plus something more". This "something" is the notional line of travel between two termini which distinguishes a route from an area simpliciter. The first proviso to section 45(1) speaks of "route or area" apparently making a distinction between them to cover applications relatable to either. A contract carriage does not ply along a fixed route or routes but over an area, which is why an application for a contract carriage permit has to contain a statement as to the proposed area.All the decisions to which we have referred above have taken the view that by area is meant the road, the physical tract, over which the motor vehicles ply without reference to any notional line of travel. Of course, this meaning was given to the word area in the context of the provisions of the Act considered in these cases, in none of which section 45 came up for consideration. We do not however find any reason to think that area in section 45 (1) has a different connotation. Except that the territorial jurisdiction of the regional transport authorities is fixed in terms of geographical area-district wise in the State of Karnataka-area in that wider sense is irrelevant to the purposes of the Act. Counsel for the respondent, Mysore State Road Transport Corporation, Bangalore, built an argument on the provisions of section 12 of the Act that the meaning of area is not restricted only to the area of motorable roads in a region. Section 42 prohibits the use of a transport vehicle in a ny public place except in accordance with the conditions of a valid permit. A transport vehicle includes a motor vehicle used for the carriage of passengers [section 2(33) and section 2(25). Public place has been defined by section 2(24) of the Act as "road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage". It was argued that a contra ct carriage which does not ply on a fixed route could be used in any public place which need not necessarily be a road; this, according to counsel, indicated that the word area occurring in section 45(1) meant geographical area and not motorable roads only. We do not find it possible to accept this contention. Assuming that a contract carriage could be used in places which are not really roads, the fact remains that a contract carriage being a motor vehicle is intended for use upon roads, and any casual use of it in places other than roads is not decisive on the interpretation of the word area. The prohibition against the use of transport vehicles in public places which are not roads serves to repel a possible claim that for using a motor vehicle in places which cannot be called roads no permit was necessary. We hold therefore that the word area in the first proviso to section 45(1) of the Act means the area of motorable roads within the territorial jurisdictio n of a regional transport authority. The Regional Transport Authority, Mandya, held that it had within its jurisdiction the largest area of motorable roads in the State of Karnataka, and this finding has not been disturbed by the appellate tribunal. The appellate tribunal thought that the expression "motorable roads" was vague as the area comprising of motorable roads would be changing from time to time", but the jurisdiction of a regional transport authority to grant an inter-regiona l permit depends on the existing area of motorable roads when an application for a permit is made.In the course of arguments before us doubts were expressed on the reasonableness of a provision which requires an application for an inter-regional permit to be made to the regional transport authority of the region in which the major portion of the proposed route or area lies when section 63 of the Act provides elaborate checks and lays down conditions for the validation of permits for use outside the region in which it has been granted. It was submitted that in view of the provisions of section 63 there was no point in insisting on the application being made to the Regional Transport Authority of any particular region. We see the logic of this submission, but this is a matter of policy on which the court has no say. However, the policy itself does not appear to have been stated very clearly. On the provisions as they are it is difficult to say that the construction put forward on behalf of the third respondent is altogether implausible. It is also true that there can be practical difficulties, whichever interpretation was adopted. This being the position we should have thought that instead of leaving the law in such a slippery state, the State should clarify it by appropriate legislation so that the law may be clear and easily ascertainable by the concerned section of the public.5.
### Response:
1
### Explanation:
All the decisions to which we have referred above have taken the view that by area is meant the road, the physical tract, over which the motor vehicles ply without reference to any notional line of travel. Of course, this meaning was given to the word area in the context of the provisions of the Act considered in these cases, in none of which section 45 came up for consideration. We do not however find any reason to think that area in section 45 (1) has a different connotation. Except that the territorial jurisdiction of the regional transport authorities is fixed in terms of geographical area-district wise in the State of Karnataka-area in that wider sense is irrelevant to the purposes of the42 prohibits the use of a transport vehicle in a ny public place except in accordance with the conditions of a valid permit. A transport vehicle includes a motor vehicle used for the carriage of passengers [section 2(33) and section 2(25). Public place has been defined by section 2(24) of the Act as "road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stagedo not find it possible to accept this contention. Assuming that a contract carriage could be used in places which are not really roads, the fact remains that a contract carriage being a motor vehicle is intended for use upon roads, and any casual use of it in places other than roads is not decisive on the interpretation of the word area. The prohibition against the use of transport vehicles in public places which are not roads serves to repel a possible claim that for using a motor vehicle in places which cannot be called roads no permit was necessary. We hold therefore that the word area in the first proviso to section 45(1) of the Act means the area of motorable roads within the territorial jurisdictio n of a regional transport authority. The Regional Transport Authority, Mandya, held that it had within its jurisdiction the largest area of motorable roads in the State of Karnataka, and this finding has not been disturbed by the appellate tribunal. The appellate tribunal thought that the expression "motorable roads" was vague as the area comprising of motorable roads would be changing from time to time", but the jurisdiction of a regional transport authority to grant an inter-regiona l permit depends on the existing area of motorable roads when an application for a permit is made.In the course of arguments before us doubts were expressed on the reasonableness of a provision which requires an application for an inter-regional permit to be made to the regional transport authority of the region in which the major portion of the proposed route or area lies when section 63 of the Act provides elaborate checks and lays down conditions for the validation of permits for use outside the region in which it has been granted. It was submitted that in view of the provisions of section 63 there was no point in insisting on the application being made to the Regional Transport Authority of any particular region. We see the logic of this submission, but this is a matter of policy on which the court has no say. However, the policy itself does not appear to have been stated very clearly. On the provisions as they are it is difficult to say that the construction put forward on behalf of the third respondent is altogether implausible. It is also true that there can be practical difficulties, whichever interpretation was adopted. This being the position we should have thought that instead of leaving the law in such a slippery state, the State should clarify it by appropriate legislation so that the law may be clear and easily ascertainable by the concerned section of the public.
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Commissioner Of Income-Tax,Bombay City-I, Bombay Vs. Associated Cement Companies Ltd., Bombay | of the Lahore High Court in Benarsidas Jagannath, In re ((1947) 15 ITR 185 (Lah) (FB) holding that expenditure may be treated as property attributable to capital when it is made not only once and for all, but with a view to bringing into existence an asset or an advantage for enduring benefit of the trade. If, on the other hand, what is got rid of by lumpsum payment is an annual business expense chargeable against revenue, the lumpsum payment should equally be regarded as a business expense, but if the lumpsum payment brings in a capital asset, then that puts the business on another footing altogether. 8. The Division Bench also took into account the fact that the assessee was already running a cement factory at Shahabad and it was not as if the expenditure incurred was in connection with starting of a new business. 9. Mr. Manchanda, learned counsel for the appellant has raised only two contentions before us. The first contention was that, since, as a result of the expenditure incurred, certain water pipelines were laid which could be regarded as capital assets the expenditure could only be regarded as capital expenditure. In our view, there is no substance in this contention. It is true that certain water supply lines did come to be laid as a result of the expenditure incurred, but the facts on record, which we have referred to above, clearly show that these water pipelines on which the expenditure in question was incurred were not assets of the assessee, but assets of the Shahabad Municipality and hence it was not as if the expenditure resulted in bringing into existence any capital asset for the Company. The only advantage derived by the assessee by incurring the expenditure was that it obtained an absolution or immunity, under normal conditions, from levy of certain municipal rates and taxes and charges. In view of this the first contention of Mr. Manchanda must be rejected. 10. The next submission made by Mr. Manchanda was that the advantage of not being liable to pay municipal rates, taxes, etc. which the assessee company secured by reason of making the expenditure in question was for a period of fifteen years and hence it could be said to be an advantage of an enduring nature, so that the expenditure incurred in acquiring the same would be regarded as capital expenditure. In our view it is difficult to accept this submission either. As observed by the Supreme Court in the decision in Empire Jute Co. Ltd. v. CIT ((1980) 124 ITR 1 (SC) : (1980) 4 SCC 25 : 1980 SCC (Tax) 335) that there may be cases where expenditure, even if incurred for obtaining an advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature acquired by an assessee that brings the case within the principles laid down in this test. What is material to consider is the nature of the advantage in advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test. If the advantage consists merely in facilitating the assessees trading operations or enabling the management and conduct of the assessees business to be carried on more effectively or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. In that case the appellant, a company carrying on the business of manufacture of jute, was a member of the Indian Jute Mills Association, which was formed with the objects, inter alia, of protecting the trade of its members, including imposing restrictive conditions on the conduct of the trade and adjusting the production of the mills of its members. A working time agreement was entered into between the members restricting the number of working hours per week for which the mills were entitled to work their looms. Clause 4 of the working time agreement provided that no signatory shall work for more than 45 hours per week. Clause 6(b) provided that signatories shall be entitled to transfer, in part or wholly, their allotment of hours of work per week to any one or more of the other signatories. Under this clause the appellant purchased looms hours from four other mills for the aggregate sum of Rs. 2, 03, 255 during the previous year relevant to the assessment year 1960-61 and claimed to deduct that amount as revenue expenditure. The Tribunal held that the expenditure incurred by the appellant was revenue in nature and hence deductible in computing the appellants profits. The High Court reversed this decision, but, on appeal, the Supreme Court allowed expenditure as deductible expenditure on the basis of the principle set out earlier. If this principle is applied to the facts of the case before us, what we find is that the advantage which was secured by the assessee by making the expenditure in question was the securing of absolution or immunity from liability to pay municipal rates and taxes under normal conditions for a period of fifteen years. If these liabilities had to be paid, the payments would have been on revenue account and hence the advantage secured was in the filed of revenue and not capital. As capital assets of the assessee company and no change in its capital structure. The pipelines, etc. which might have been regarded as capital assets and which came into existence as a result of the expenditure incurred did not belong to the assessee company but to the municipality. In these circumstances, applying the principles laid down in Empire Jute Co. case ((1980) 124 ITR 1 (SC) : (1980) 4 SCC 25 : 1980 SCC (Tax) 335) the expenditure is clearly liable to be allowed as deductible from the profits under Section 10(2)(xv) of the Indian Income Tax Act. 11. | 0[ds]In our view, there is no substance in this contention. It is true that certain water supply lines did come to be laid as a result of the expenditure incurred, but the facts on record, which we have referred to above, clearly show that these water pipelines on which the expenditure in question was incurred were not assets of the assessee, but assets of the Shahabad Municipality and hence it was not as if the expenditure resulted in bringing into existence any capital asset for the Company. The only advantage derived by the assessee by incurring the expenditure was that it obtained an absolution or immunity, under normal conditions, from levy of certain municipal rates and taxes and charges. In view of this the first contention of Mr. Manchanda must be rejectedIn our view it is difficult to accept this submission either. As observed by the Supreme Court in the decision in Empire Jute Co. Ltd. v. CIT ((1980) 124 ITR 1 (SC) : (1980) 4 SCC 25 : 1980 SCC (Tax) 335) that there may be cases where expenditure, even if incurred for obtaining an advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature acquired by an assessee that brings the case within the principles laid down in this test. What is material to consider is the nature of the advantage in advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test. If the advantage consists merely in facilitating the assessees trading operations or enabling the management and conduct of the assessees business to be carried on more effectively or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. In that case the appellant, a company carrying on the business of manufacture of jute, was a member of the Indian Jute Mills Association, which was formed with the objects, inter alia, of protecting the trade of its members, including imposing restrictive conditions on the conduct of the trade and adjusting the production of the mills of its members. A working time agreement was entered into between the members restricting the number of working hours per week for which the mills were entitled to work their looms. Clause 4 of the working time agreement provided that no signatory shall work for more than 45 hours per week. Clause 6(b) provided that signatories shall be entitled to transfer, in part or wholly, their allotment of hours of work per week to any one or more of the other signatories. Under this clause the appellant purchased looms hours from four other mills for the aggregate sum of Rs. 2, 03, 255 during the previous year relevant to the assessment year 1960-61 and claimed to deduct that amount as revenue expenditure. The Tribunal held that the expenditure incurred by the appellant was revenue in nature and hence deductible in computing the appellants profits. The High Court reversed this decision, but, on appeal, the Supreme Court allowed expenditure as deductible expenditure on the basis of the principle set out earlier. If this principle is applied to the facts of the case before us, what we find is that the advantage which was secured by the assessee by making the expenditure in question was the securing of absolution or immunity from liability to pay municipal rates and taxes under normal conditions for a period of fifteen years. If these liabilities had to be paid, the payments would have been on revenue account and hence the advantage secured was in the filed of revenue and not capital. As capital assets of the assessee company and no change in its capital structure. The pipelines, etc. which might have been regarded as capital assets and which came into existence as a result of the expenditure incurred did not belong to the assessee company but to the municipality. In these circumstances, applying the principles laid down in Empire Jute Co. case ((1980) 124 ITR 1 (SC) : (1980) 4 SCC 25 : 1980 SCC (Tax) 335) the expenditure is clearly liable to be allowed as deductible from the profits under Section 10(2)(xv) of the Indian Income Tax Act. | 0 | 2,345 | 817 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
of the Lahore High Court in Benarsidas Jagannath, In re ((1947) 15 ITR 185 (Lah) (FB) holding that expenditure may be treated as property attributable to capital when it is made not only once and for all, but with a view to bringing into existence an asset or an advantage for enduring benefit of the trade. If, on the other hand, what is got rid of by lumpsum payment is an annual business expense chargeable against revenue, the lumpsum payment should equally be regarded as a business expense, but if the lumpsum payment brings in a capital asset, then that puts the business on another footing altogether. 8. The Division Bench also took into account the fact that the assessee was already running a cement factory at Shahabad and it was not as if the expenditure incurred was in connection with starting of a new business. 9. Mr. Manchanda, learned counsel for the appellant has raised only two contentions before us. The first contention was that, since, as a result of the expenditure incurred, certain water pipelines were laid which could be regarded as capital assets the expenditure could only be regarded as capital expenditure. In our view, there is no substance in this contention. It is true that certain water supply lines did come to be laid as a result of the expenditure incurred, but the facts on record, which we have referred to above, clearly show that these water pipelines on which the expenditure in question was incurred were not assets of the assessee, but assets of the Shahabad Municipality and hence it was not as if the expenditure resulted in bringing into existence any capital asset for the Company. The only advantage derived by the assessee by incurring the expenditure was that it obtained an absolution or immunity, under normal conditions, from levy of certain municipal rates and taxes and charges. In view of this the first contention of Mr. Manchanda must be rejected. 10. The next submission made by Mr. Manchanda was that the advantage of not being liable to pay municipal rates, taxes, etc. which the assessee company secured by reason of making the expenditure in question was for a period of fifteen years and hence it could be said to be an advantage of an enduring nature, so that the expenditure incurred in acquiring the same would be regarded as capital expenditure. In our view it is difficult to accept this submission either. As observed by the Supreme Court in the decision in Empire Jute Co. Ltd. v. CIT ((1980) 124 ITR 1 (SC) : (1980) 4 SCC 25 : 1980 SCC (Tax) 335) that there may be cases where expenditure, even if incurred for obtaining an advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature acquired by an assessee that brings the case within the principles laid down in this test. What is material to consider is the nature of the advantage in advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test. If the advantage consists merely in facilitating the assessees trading operations or enabling the management and conduct of the assessees business to be carried on more effectively or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. In that case the appellant, a company carrying on the business of manufacture of jute, was a member of the Indian Jute Mills Association, which was formed with the objects, inter alia, of protecting the trade of its members, including imposing restrictive conditions on the conduct of the trade and adjusting the production of the mills of its members. A working time agreement was entered into between the members restricting the number of working hours per week for which the mills were entitled to work their looms. Clause 4 of the working time agreement provided that no signatory shall work for more than 45 hours per week. Clause 6(b) provided that signatories shall be entitled to transfer, in part or wholly, their allotment of hours of work per week to any one or more of the other signatories. Under this clause the appellant purchased looms hours from four other mills for the aggregate sum of Rs. 2, 03, 255 during the previous year relevant to the assessment year 1960-61 and claimed to deduct that amount as revenue expenditure. The Tribunal held that the expenditure incurred by the appellant was revenue in nature and hence deductible in computing the appellants profits. The High Court reversed this decision, but, on appeal, the Supreme Court allowed expenditure as deductible expenditure on the basis of the principle set out earlier. If this principle is applied to the facts of the case before us, what we find is that the advantage which was secured by the assessee by making the expenditure in question was the securing of absolution or immunity from liability to pay municipal rates and taxes under normal conditions for a period of fifteen years. If these liabilities had to be paid, the payments would have been on revenue account and hence the advantage secured was in the filed of revenue and not capital. As capital assets of the assessee company and no change in its capital structure. The pipelines, etc. which might have been regarded as capital assets and which came into existence as a result of the expenditure incurred did not belong to the assessee company but to the municipality. In these circumstances, applying the principles laid down in Empire Jute Co. case ((1980) 124 ITR 1 (SC) : (1980) 4 SCC 25 : 1980 SCC (Tax) 335) the expenditure is clearly liable to be allowed as deductible from the profits under Section 10(2)(xv) of the Indian Income Tax Act. 11.
### Response:
0
### Explanation:
In our view, there is no substance in this contention. It is true that certain water supply lines did come to be laid as a result of the expenditure incurred, but the facts on record, which we have referred to above, clearly show that these water pipelines on which the expenditure in question was incurred were not assets of the assessee, but assets of the Shahabad Municipality and hence it was not as if the expenditure resulted in bringing into existence any capital asset for the Company. The only advantage derived by the assessee by incurring the expenditure was that it obtained an absolution or immunity, under normal conditions, from levy of certain municipal rates and taxes and charges. In view of this the first contention of Mr. Manchanda must be rejectedIn our view it is difficult to accept this submission either. As observed by the Supreme Court in the decision in Empire Jute Co. Ltd. v. CIT ((1980) 124 ITR 1 (SC) : (1980) 4 SCC 25 : 1980 SCC (Tax) 335) that there may be cases where expenditure, even if incurred for obtaining an advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature acquired by an assessee that brings the case within the principles laid down in this test. What is material to consider is the nature of the advantage in advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test. If the advantage consists merely in facilitating the assessees trading operations or enabling the management and conduct of the assessees business to be carried on more effectively or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. In that case the appellant, a company carrying on the business of manufacture of jute, was a member of the Indian Jute Mills Association, which was formed with the objects, inter alia, of protecting the trade of its members, including imposing restrictive conditions on the conduct of the trade and adjusting the production of the mills of its members. A working time agreement was entered into between the members restricting the number of working hours per week for which the mills were entitled to work their looms. Clause 4 of the working time agreement provided that no signatory shall work for more than 45 hours per week. Clause 6(b) provided that signatories shall be entitled to transfer, in part or wholly, their allotment of hours of work per week to any one or more of the other signatories. Under this clause the appellant purchased looms hours from four other mills for the aggregate sum of Rs. 2, 03, 255 during the previous year relevant to the assessment year 1960-61 and claimed to deduct that amount as revenue expenditure. The Tribunal held that the expenditure incurred by the appellant was revenue in nature and hence deductible in computing the appellants profits. The High Court reversed this decision, but, on appeal, the Supreme Court allowed expenditure as deductible expenditure on the basis of the principle set out earlier. If this principle is applied to the facts of the case before us, what we find is that the advantage which was secured by the assessee by making the expenditure in question was the securing of absolution or immunity from liability to pay municipal rates and taxes under normal conditions for a period of fifteen years. If these liabilities had to be paid, the payments would have been on revenue account and hence the advantage secured was in the filed of revenue and not capital. As capital assets of the assessee company and no change in its capital structure. The pipelines, etc. which might have been regarded as capital assets and which came into existence as a result of the expenditure incurred did not belong to the assessee company but to the municipality. In these circumstances, applying the principles laid down in Empire Jute Co. case ((1980) 124 ITR 1 (SC) : (1980) 4 SCC 25 : 1980 SCC (Tax) 335) the expenditure is clearly liable to be allowed as deductible from the profits under Section 10(2)(xv) of the Indian Income Tax Act.
|
HCMI Education Vs. Narendra Pal Singh | RESOLVED, that the Commission approves the abolition of Bachelor of Medicine, Bachelor of Surgery (MBBS) Program effective S.Y. 2008-2009. RESOLVED FURTHER, that with regard to the existing students of the said program, the Technical Panel for Health Professions Education is requested to study, review and submit recommendation to the Commission En Banc for further decision, and that all medical schools be furnished copies of this resolution. 5. Consequent thereon, an alternative course was offered and the MBBS students were re-directed to the BS Biology, pursuant to the CEB Resolution No. 491-2008, with reference to such students who already got admitted/accepted under MBBS Course. For better appreciation, the aforesaid order is also placed on record: Republic of the Philippines OFFICE OF THE PRESIDENT COMMISSION ON HIGHER EDUCATION CHED MEMORANDUM ORDER No.46 Series of 2008 SUBJECT: ABOLITION OF THE BACHELOR OF MEDICINE, BACHELOR OF SURGERY (MBBS) PROGRAM EFFECTIVE ACADEMIC YEAR 2008-2009. In accordance with pertinent provisions of Republic Act 7722, otherwise known as the Higher Education Act of 1994 and pursuant to CEB Resolution No. 491-2008 dated September 22, 2008 the abolition of the Bachelor of - Medicine, Bachelor of Surgery (MBBS) proqram is hereby made effective School Year 2008-2009. Colleges and universities which accepted MBBS students are instructed to comply with the following: 1. MBBS students shall be re-directed to the BS Biology Program. 2. HEIs that have no BS Biology and M.D. programs shall transfer their MBBS students to other HEIs that have recognized BS Biology and M.D. programs, listed in either WHO Directory or FAIMER and are willing to accept said students. 3. The abovementioned HEIs shall assess the subjects taken in Grades 11 and 12 as well as some subjects already taken in MBBS for credit towards BS Biology. In excess of the BS Biology requirements, some MBBS subjects may be credited towards the M.D. program after this group of students have passed in validating examination administered by the concerned HEIs. 4. There shall be no double crediting of subjects. Subjects in Grades 11 and 12 and those taken in the MBBS that were credited towards BS Biology shall no longer be credited to the M.D. program. 5. NMAT shall be required of students-in this group as it is required of other students for admission to the MD program. 6. The duration of the BS Biology program for this group of students should not be less than three (3) semesters and one (1) summer or a minimum total of ninety-two (92) units. For strict and immediate compliance. Quezon City, Philippines October 20, 2008. 6. On the incipient view, the respondent did not take the aforesaid offer, but instead has chosen to come back to India with immediate action by filing his representation to the appellant. Thereafter, he lodged the complaint, notwithstanding the offer made by the appellant to mitigate the loss with respect to the additional one year, as offered by the Republic of Philippines for the bridge course after the abolition of the MBBS programme. 7. All the Forums below, including the National Consumer Disputes Redressal Commission (hereinafter referred to as the National Commission), rejected the appellants response and accordingly it was asked to pay a sum of $12000, apart from compensation and costs. Aggrieved thereby, the appellant is before us. 8. The counsel for the appellant contends that though the complaint per se is not maintainable against the educational institution, apart from lack of territorial jurisdiction, the issue can be decided on merits as the matter is seized of by a larger Bench in Civil Appeal Diary No. 12901 of 2020 dated 15.10.2020 as to whether the educational institution is amenable or not, to be decided by a Consumer Forum. 9. It is submitted that the appellant is only a facilitator and, in any case, it has no control over the decision of the Republic of Philippines. It is a policy decision taken by the said country and the fact that the respondent got admitted with the concerned College and completed one year is not in dispute. The decision of the Republic of Philippines (Office of CHED) being a subsequent one, there cannot be any liability fasten upon the appellant. 10. Before venturing into the above contentions raised, the scope of the appeal invoking Section 27A of the Consumer Protection Act, 1986 which was invoked at the time of filing of the appeal, requires consideration. Section 27A facilitates a further appeal to this Court against the order passed by the National Commission. Such an appeal can be adjudicated upon by this Court both on facts and law. Since the appeal provides for adjudication on the aforesaid two aspects, this Court can decide the matter not only on the law but facts as well. 11. On merit, we find considerable force in the submission made by the learned counsel for the appellant. Though the documents would indicate that the appellant was acting on behalf of CHED also, it played no role in the policy decision made. The said documents are to be understood contextually. The role of the appellant stops with the admission being secured, which it did. The policy decision of the Republic of Philippines cannot be questioned before the Consumer Forum. 12. In any case, such a policy decision cannot be the basis for seeking redressal against the appellant. The appellant cannot be considered to be a part of the Republic of Philippines or the Office of CHED for the policy decision changes made, which was made not pertaining to a single institution, but the whole Republic. 13. On facts, the respondent did complete one year. At the time of admission and continuation in the year 2007-2008 there was no problem with the MBBS course. It was only in pursuance to the decision as aforesaid made by the Republic of Philippines, the students were offered to continue with the alternative course, which the appellant has not chosen whatsoever. This is an aspect that the Forums have failed to take note of in the correct perspective. | 0[ds]11. On merit, we find considerable force in the submission made by the learned counsel for the appellant. Though the documents would indicate that the appellant was acting on behalf of CHED also, it played no role in the policy decision made. The said documents are to be understood contextually. The role of the appellant stops with the admission being secured, which it did. The policy decision of the Republic of Philippines cannot be questioned before the Consumer Forum.12. In any case, such a policy decision cannot be the basis for seeking redressal against the appellant. The appellant cannot be considered to be a part of the Republic of Philippines or the Office of CHED for the policy decision changes made, which was made not pertaining to a single institution, but the whole Republic.13. On facts, the respondent did complete one year. At the time of admission and continuation in the year 2007-2008 there was no problem with the MBBS course. It was only in pursuance to the decision as aforesaid made by the Republic of Philippines, the students were offered to continue with the alternative course, which the appellant has not chosen whatsoever. This is an aspect that the Forums have failed to take note of in the correct perspective. | 0 | 1,836 | 239 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
RESOLVED, that the Commission approves the abolition of Bachelor of Medicine, Bachelor of Surgery (MBBS) Program effective S.Y. 2008-2009. RESOLVED FURTHER, that with regard to the existing students of the said program, the Technical Panel for Health Professions Education is requested to study, review and submit recommendation to the Commission En Banc for further decision, and that all medical schools be furnished copies of this resolution. 5. Consequent thereon, an alternative course was offered and the MBBS students were re-directed to the BS Biology, pursuant to the CEB Resolution No. 491-2008, with reference to such students who already got admitted/accepted under MBBS Course. For better appreciation, the aforesaid order is also placed on record: Republic of the Philippines OFFICE OF THE PRESIDENT COMMISSION ON HIGHER EDUCATION CHED MEMORANDUM ORDER No.46 Series of 2008 SUBJECT: ABOLITION OF THE BACHELOR OF MEDICINE, BACHELOR OF SURGERY (MBBS) PROGRAM EFFECTIVE ACADEMIC YEAR 2008-2009. In accordance with pertinent provisions of Republic Act 7722, otherwise known as the Higher Education Act of 1994 and pursuant to CEB Resolution No. 491-2008 dated September 22, 2008 the abolition of the Bachelor of - Medicine, Bachelor of Surgery (MBBS) proqram is hereby made effective School Year 2008-2009. Colleges and universities which accepted MBBS students are instructed to comply with the following: 1. MBBS students shall be re-directed to the BS Biology Program. 2. HEIs that have no BS Biology and M.D. programs shall transfer their MBBS students to other HEIs that have recognized BS Biology and M.D. programs, listed in either WHO Directory or FAIMER and are willing to accept said students. 3. The abovementioned HEIs shall assess the subjects taken in Grades 11 and 12 as well as some subjects already taken in MBBS for credit towards BS Biology. In excess of the BS Biology requirements, some MBBS subjects may be credited towards the M.D. program after this group of students have passed in validating examination administered by the concerned HEIs. 4. There shall be no double crediting of subjects. Subjects in Grades 11 and 12 and those taken in the MBBS that were credited towards BS Biology shall no longer be credited to the M.D. program. 5. NMAT shall be required of students-in this group as it is required of other students for admission to the MD program. 6. The duration of the BS Biology program for this group of students should not be less than three (3) semesters and one (1) summer or a minimum total of ninety-two (92) units. For strict and immediate compliance. Quezon City, Philippines October 20, 2008. 6. On the incipient view, the respondent did not take the aforesaid offer, but instead has chosen to come back to India with immediate action by filing his representation to the appellant. Thereafter, he lodged the complaint, notwithstanding the offer made by the appellant to mitigate the loss with respect to the additional one year, as offered by the Republic of Philippines for the bridge course after the abolition of the MBBS programme. 7. All the Forums below, including the National Consumer Disputes Redressal Commission (hereinafter referred to as the National Commission), rejected the appellants response and accordingly it was asked to pay a sum of $12000, apart from compensation and costs. Aggrieved thereby, the appellant is before us. 8. The counsel for the appellant contends that though the complaint per se is not maintainable against the educational institution, apart from lack of territorial jurisdiction, the issue can be decided on merits as the matter is seized of by a larger Bench in Civil Appeal Diary No. 12901 of 2020 dated 15.10.2020 as to whether the educational institution is amenable or not, to be decided by a Consumer Forum. 9. It is submitted that the appellant is only a facilitator and, in any case, it has no control over the decision of the Republic of Philippines. It is a policy decision taken by the said country and the fact that the respondent got admitted with the concerned College and completed one year is not in dispute. The decision of the Republic of Philippines (Office of CHED) being a subsequent one, there cannot be any liability fasten upon the appellant. 10. Before venturing into the above contentions raised, the scope of the appeal invoking Section 27A of the Consumer Protection Act, 1986 which was invoked at the time of filing of the appeal, requires consideration. Section 27A facilitates a further appeal to this Court against the order passed by the National Commission. Such an appeal can be adjudicated upon by this Court both on facts and law. Since the appeal provides for adjudication on the aforesaid two aspects, this Court can decide the matter not only on the law but facts as well. 11. On merit, we find considerable force in the submission made by the learned counsel for the appellant. Though the documents would indicate that the appellant was acting on behalf of CHED also, it played no role in the policy decision made. The said documents are to be understood contextually. The role of the appellant stops with the admission being secured, which it did. The policy decision of the Republic of Philippines cannot be questioned before the Consumer Forum. 12. In any case, such a policy decision cannot be the basis for seeking redressal against the appellant. The appellant cannot be considered to be a part of the Republic of Philippines or the Office of CHED for the policy decision changes made, which was made not pertaining to a single institution, but the whole Republic. 13. On facts, the respondent did complete one year. At the time of admission and continuation in the year 2007-2008 there was no problem with the MBBS course. It was only in pursuance to the decision as aforesaid made by the Republic of Philippines, the students were offered to continue with the alternative course, which the appellant has not chosen whatsoever. This is an aspect that the Forums have failed to take note of in the correct perspective.
### Response:
0
### Explanation:
11. On merit, we find considerable force in the submission made by the learned counsel for the appellant. Though the documents would indicate that the appellant was acting on behalf of CHED also, it played no role in the policy decision made. The said documents are to be understood contextually. The role of the appellant stops with the admission being secured, which it did. The policy decision of the Republic of Philippines cannot be questioned before the Consumer Forum.12. In any case, such a policy decision cannot be the basis for seeking redressal against the appellant. The appellant cannot be considered to be a part of the Republic of Philippines or the Office of CHED for the policy decision changes made, which was made not pertaining to a single institution, but the whole Republic.13. On facts, the respondent did complete one year. At the time of admission and continuation in the year 2007-2008 there was no problem with the MBBS course. It was only in pursuance to the decision as aforesaid made by the Republic of Philippines, the students were offered to continue with the alternative course, which the appellant has not chosen whatsoever. This is an aspect that the Forums have failed to take note of in the correct perspective.
|
Rajender Bansal Vs. Bhuru (D) Thr. Lrs. | the Court took aid of purposive interpretation i.e. legislative intent in not making Rent Act applicable to new constructions for a period of ten years. 18. What we notice is that in the impugned judgment, the High Court has divided the cases into two categories and restricted the law laid down in the aforesaid judgments only in respect of those category of cases where Rent Act exempts from its applicability newly constructed properties for a period of ten years. Second category of cases carved out covers those cases where the Rent Act was not applicable when the suit was filed but extended to the area/premises in question during the pendency of the suit. In respect of later category the High Court held that the dicta in the aforesaid judgments would not be applicable and the moment Rent Act is extended to such areas where the premises are situate, civil court shall cease to have jurisdiction to continue with the suits though instituted even at a point of time when Rent Act was not applicable. This distinction, according to us, is illusory. The principles of law laid down in the aforesaid judgment as culled out above would apply in equal force to second category of cases as well inasmuch as the basic principle which is laid down in the aforesaid judgments is that rights of the parties get crystallised on the date of the institution of the suit and the law applicable on the date of filing the suit would continue to govern such suit. 19. At the juncture, we take note of the law laid down in Mansoor Khan (2002) 5 SCC 462 which is in tune with what we have stated above. That was a case which arose out of Central Provinces and Berar Letting of Houses and Rent Control Order, 1949. Clause 13 thereof provided protection to the tenants against eviction and stipulated grounds which would entitle a landlord to seek eviction of the tenant by filing a petition before the Controller appointed under the said Act. This Order was applicable to certain areas but did not include city of Risod. The said area of Risod in the erstwhile province of C.P. and Berar was covered under the Order, 1949 by Notification dated October 09, 2010. However, much before this Notification, the landlord in that case had filed the suit for possession in the Civil Court after the lease had been determined. This Court held that Civil Court shall continue to have jurisdiction as Order, 1949 was not retrospective in operation and where the eviction suit had already been initiated and was pending on the date when order became applicable to the area in which the suit premises was situate, provisions of the order would not affect validity of previously instituted proceedings and the Court was competent to pass eviction decree under the Transfer of Property Act. 20. A significant question would be as to how we need to read judgments in Mani Subrat Jain and Laxmi Narayan Guin cases, the outcome whereof went in other direction. However, when we understand the ratio of the aforesaid two cases appropriately, we find no contradiction between these two cases and other line of cases like Atma Ram Mittal etc. discussed above. Insofar as judgments in Mani Subrat Jain and Laxmi Narayan Guin are concerned, these were rendered keeping in view the definition of "tenant" appearing in the rent legislations therein, namely, East Punjab Rent Restriction Act and West Bengal Premises Tenancy Act. What was found that definition of tenant in those enactments included even an ex-tenant. This coupled with the fact that there was specific provision laying down that a tenant will not be evicted even in execution of a decree passed either before or after the commencement of the enactment, except in accordance with the provisions contained in the Rent Act, impelled the Court to take the view that the moment Rent Act became applicable to the area in question, the tenant or even ex-tenant stood protected and could be evicted only under the said Rent Acts. Therefore, the principles which we have culled out above in para 16 would be subject to one exception. In case definition of tenant and provisions pertaining to eviction of tenants contained in Rent Acts cover even those cases where the tenancy has been terminated (or depending upon the provisions of the Rent Act, even when Civil Court has passed the decree) the protection provided under such provision would come to the rescue of the tenant even in respect of pending cases. It is because of the reason that such a Rent Act specifically provides for protection of this nature and bars the jurisdiction of civil court even in respect of pending cases. On the other hand, where there is no such specific protection given under the provisions of the said Rent Act, the principle as laid down in Mansoor Khan (2002) 5 SCC 462 will be applicable. 21. When we apply the principles laid down above to the instant case, we find that this case would fall in the category of Atma Ram Mittal and Mansoor Khan etc. as under the scheme of the Rent Act, no protection to the ex-tenants is provided and no provision is made excluding the jurisdiction of civil courts in respect of pending cases, expressly or impliedly. On the other hand, in the facts of the present case, it needs to be highlighted again that the respondents had not only sublet the premises but had not paid rent for a period of 14 years. His defence was struck off by the civil court and ultimately suit was even decreed. It is only during the pendency of the appeal that the notification was issued covering the area where suit premises are situate under the Rent Act. It will be travesty of justice if the appellants/landlords are deprived of the fruits of the said decree. 22. We are, thus, unable to accept the view taken by the High Court. | 1[ds]we need to read judgments in Mani Subrat Jain and Laxmi Narayan Guin cases, the outcome whereof went in other direction. However, when we understand the ratio of the aforesaid two cases appropriately, we find no contradiction between these two cases and other line of cases like Atma Ram Mittal etc. discussed above. Insofar as judgments in Mani Subrat Jain and Laxmi Narayan Guin are concerned, these were rendered keeping in view the definition of "tenant" appearing in the rent legislations therein, namely, East Punjab Rent Restriction Act and West Bengal Premises Tenancy Act. What was found that definition of tenant in those enactments included even an ex-tenant. This coupled with the fact that there was specific provision laying down that a tenant will not be evicted even in execution of a decree passed either before or after the commencement of the enactment, except in accordance with the provisions contained in the Rent Act, impelled the Court to take the view that the moment Rent Act became applicable to the area in question, the tenant or even ex-tenant stood protected and could be evicted only under the said Rent Acts. Therefore, the principles which we have culled out above in para 16 would be subject to one exception. In case definition of tenant and provisions pertaining to eviction of tenants contained in Rent Acts cover even those cases where the tenancy has been terminated (or depending upon the provisions of the Rent Act, even when Civil Court has passed the decree) the protection provided under such provision would come to the rescue of the tenant even in respect of pending cases. It is because of the reason that such a Rent Act specifically provides for protection of this nature and bars the jurisdiction of civil court even in respect of pending cases. On the other hand, where there is no such specific protection given under the provisions of the said Rent Act, the principle as laid down in Mansoor Khan (2002) 5 SCC 462 will be21. When we apply the principles laid down above to the instant case, we find that this case would fall in the category of Atma Ram Mittal and Mansoor Khan etc. as under the scheme of the Rent Act, no protection to the ex-tenants is provided and no provision is made excluding the jurisdiction of civil courts in respect of pending cases, expressly or impliedly. On the other hand, in the facts of the present case, it needs to be highlighted again that the respondents had not only sublet the premises but had not paid rent for a period of 14 years. His defence was struck off by the civil court and ultimately suit was even decreed. It is only during the pendency of the appeal that the notification was issued covering the area where suit premises are situate under the Rent Act. It will be travesty of justice if the appellants/landlords are deprived of the fruits of the said decree.We are, thus, unable to accept the view taken by the High Court. | 1 | 6,958 | 554 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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the Court took aid of purposive interpretation i.e. legislative intent in not making Rent Act applicable to new constructions for a period of ten years. 18. What we notice is that in the impugned judgment, the High Court has divided the cases into two categories and restricted the law laid down in the aforesaid judgments only in respect of those category of cases where Rent Act exempts from its applicability newly constructed properties for a period of ten years. Second category of cases carved out covers those cases where the Rent Act was not applicable when the suit was filed but extended to the area/premises in question during the pendency of the suit. In respect of later category the High Court held that the dicta in the aforesaid judgments would not be applicable and the moment Rent Act is extended to such areas where the premises are situate, civil court shall cease to have jurisdiction to continue with the suits though instituted even at a point of time when Rent Act was not applicable. This distinction, according to us, is illusory. The principles of law laid down in the aforesaid judgment as culled out above would apply in equal force to second category of cases as well inasmuch as the basic principle which is laid down in the aforesaid judgments is that rights of the parties get crystallised on the date of the institution of the suit and the law applicable on the date of filing the suit would continue to govern such suit. 19. At the juncture, we take note of the law laid down in Mansoor Khan (2002) 5 SCC 462 which is in tune with what we have stated above. That was a case which arose out of Central Provinces and Berar Letting of Houses and Rent Control Order, 1949. Clause 13 thereof provided protection to the tenants against eviction and stipulated grounds which would entitle a landlord to seek eviction of the tenant by filing a petition before the Controller appointed under the said Act. This Order was applicable to certain areas but did not include city of Risod. The said area of Risod in the erstwhile province of C.P. and Berar was covered under the Order, 1949 by Notification dated October 09, 2010. However, much before this Notification, the landlord in that case had filed the suit for possession in the Civil Court after the lease had been determined. This Court held that Civil Court shall continue to have jurisdiction as Order, 1949 was not retrospective in operation and where the eviction suit had already been initiated and was pending on the date when order became applicable to the area in which the suit premises was situate, provisions of the order would not affect validity of previously instituted proceedings and the Court was competent to pass eviction decree under the Transfer of Property Act. 20. A significant question would be as to how we need to read judgments in Mani Subrat Jain and Laxmi Narayan Guin cases, the outcome whereof went in other direction. However, when we understand the ratio of the aforesaid two cases appropriately, we find no contradiction between these two cases and other line of cases like Atma Ram Mittal etc. discussed above. Insofar as judgments in Mani Subrat Jain and Laxmi Narayan Guin are concerned, these were rendered keeping in view the definition of "tenant" appearing in the rent legislations therein, namely, East Punjab Rent Restriction Act and West Bengal Premises Tenancy Act. What was found that definition of tenant in those enactments included even an ex-tenant. This coupled with the fact that there was specific provision laying down that a tenant will not be evicted even in execution of a decree passed either before or after the commencement of the enactment, except in accordance with the provisions contained in the Rent Act, impelled the Court to take the view that the moment Rent Act became applicable to the area in question, the tenant or even ex-tenant stood protected and could be evicted only under the said Rent Acts. Therefore, the principles which we have culled out above in para 16 would be subject to one exception. In case definition of tenant and provisions pertaining to eviction of tenants contained in Rent Acts cover even those cases where the tenancy has been terminated (or depending upon the provisions of the Rent Act, even when Civil Court has passed the decree) the protection provided under such provision would come to the rescue of the tenant even in respect of pending cases. It is because of the reason that such a Rent Act specifically provides for protection of this nature and bars the jurisdiction of civil court even in respect of pending cases. On the other hand, where there is no such specific protection given under the provisions of the said Rent Act, the principle as laid down in Mansoor Khan (2002) 5 SCC 462 will be applicable. 21. When we apply the principles laid down above to the instant case, we find that this case would fall in the category of Atma Ram Mittal and Mansoor Khan etc. as under the scheme of the Rent Act, no protection to the ex-tenants is provided and no provision is made excluding the jurisdiction of civil courts in respect of pending cases, expressly or impliedly. On the other hand, in the facts of the present case, it needs to be highlighted again that the respondents had not only sublet the premises but had not paid rent for a period of 14 years. His defence was struck off by the civil court and ultimately suit was even decreed. It is only during the pendency of the appeal that the notification was issued covering the area where suit premises are situate under the Rent Act. It will be travesty of justice if the appellants/landlords are deprived of the fruits of the said decree. 22. We are, thus, unable to accept the view taken by the High Court.
### Response:
1
### Explanation:
we need to read judgments in Mani Subrat Jain and Laxmi Narayan Guin cases, the outcome whereof went in other direction. However, when we understand the ratio of the aforesaid two cases appropriately, we find no contradiction between these two cases and other line of cases like Atma Ram Mittal etc. discussed above. Insofar as judgments in Mani Subrat Jain and Laxmi Narayan Guin are concerned, these were rendered keeping in view the definition of "tenant" appearing in the rent legislations therein, namely, East Punjab Rent Restriction Act and West Bengal Premises Tenancy Act. What was found that definition of tenant in those enactments included even an ex-tenant. This coupled with the fact that there was specific provision laying down that a tenant will not be evicted even in execution of a decree passed either before or after the commencement of the enactment, except in accordance with the provisions contained in the Rent Act, impelled the Court to take the view that the moment Rent Act became applicable to the area in question, the tenant or even ex-tenant stood protected and could be evicted only under the said Rent Acts. Therefore, the principles which we have culled out above in para 16 would be subject to one exception. In case definition of tenant and provisions pertaining to eviction of tenants contained in Rent Acts cover even those cases where the tenancy has been terminated (or depending upon the provisions of the Rent Act, even when Civil Court has passed the decree) the protection provided under such provision would come to the rescue of the tenant even in respect of pending cases. It is because of the reason that such a Rent Act specifically provides for protection of this nature and bars the jurisdiction of civil court even in respect of pending cases. On the other hand, where there is no such specific protection given under the provisions of the said Rent Act, the principle as laid down in Mansoor Khan (2002) 5 SCC 462 will be21. When we apply the principles laid down above to the instant case, we find that this case would fall in the category of Atma Ram Mittal and Mansoor Khan etc. as under the scheme of the Rent Act, no protection to the ex-tenants is provided and no provision is made excluding the jurisdiction of civil courts in respect of pending cases, expressly or impliedly. On the other hand, in the facts of the present case, it needs to be highlighted again that the respondents had not only sublet the premises but had not paid rent for a period of 14 years. His defence was struck off by the civil court and ultimately suit was even decreed. It is only during the pendency of the appeal that the notification was issued covering the area where suit premises are situate under the Rent Act. It will be travesty of justice if the appellants/landlords are deprived of the fruits of the said decree.We are, thus, unable to accept the view taken by the High Court.
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Kamla Chaturvedi Vs. National Insurance Co. | of the accident till the date of payment was also made payable by Respondent 9- insurance company.4. The claimants were satisfied with the said awards. Similarly the appellant-owner was also satisfied with the said awards. However, the insurance company carried the matter in appeals before the High Court and contended that the insurance company would be liable under the contract of insurance only to make good the claims for compensation so far as the principal amounts were concerned. But it could not have been made liable to pay the amounts of penalties with interest thereon as ordered by the Workmens Commissioner as these amounts of penal nature were awarded against the insured owner on account of his personal default as per Section 4-A(3) of the Compensation Act and for such default on the part of the insured the insurance company was not liable to reimburse the insured. As noted earlier, the said contention of Respondent 9-insurance company appealed to the High Court. The appeals were allowed and the awards of the Commissioner under the Compensation Act insofar as they fastened the liability to pay the penalty and interest on the insurance company were set aside. The amounts deposited in excess by the insurance company were ordered to be refunded to it while the remaining amounts were ordered to be paid to the claimants. It was, however, clarified that the claimants shall be at liberty to recover the amount of penalty and interest in accordance with law from the employer, appellant herein." 6. In Ved Prakash Garg v. Premi Devi and others [1997(8) SCC 1] this court observed that the Insurance Company is liable to pay not only the principal amount of compensation payable by the insurer employer but also interest thereon if ordered by the Commissioner to be paid by the insured, employee. Insurance company is liable to meet claim for compensation along with interest as imposed on insurer employer by the Act on conjoint operation of Section 3 and 4(A)(3)(a) of the Act. It was, however, held that it was the liability of the insured employer alone in respect of additional amount of compensation by way of penalty under Section 4(A)(3)(b) of the Act. In New India Assurance Co.s case (supra) and Ved Prakash Gargs case (supra) was distinguished on facts. It was observed that in the said case the court was not concerned with a case where an accident had occurred by use of motor vehicle in respect whereof the Contract of Insurance will be governed by the provisions of the Motor Vehicles Act, 1988 (in short the `M.V. Act). A contract of Insurance is governed by the provisions of the Insurance Act, 1938 (in short the `Insurance Act), unless the said contract is governed by the provisions of a statute. The parties are free to enter into a contract as per their own volition. The Act does not contain a provision like Section 148 of the MV Act where a statute does not provide for a compulsory insurance or accident thereof. The parties are free to choose their terms of contract. In that view of the matter contracting out so far as the reimbursement of amount of interest is concerned is not prohibited by a statute. This position have been reiterated in P.J. Narayan v. Union of India and others [2006 (5) SCC 200 ]. In the instant case the position is different. The accident in question arose on account of vehicular accident and provisions of MV Act are clearly applicable. We have gone through the policy of insurance and we find that no such exception as was the case in New India Assurance Co.s case was stipulated in the policy of insurance. Therefore, the Insurance Company is liable to pay the interest. 7. The further question arises as to from which date it would be paid. 8. In National Insurance co. Ltd. v. Mubasir Ahmed & Anr. [2007(2) SCC 349] it was, inter alia, held as follows: "Interest is payable under Section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4-A was dealt with by this Court in Maghar Singh v. Jashwant Singh [(1998) 9 SCC 134] . By amending Act 30 of 1995, Section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub- section (2) of Section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is "falls due". Significantly, legislature has not used the expression "from the date of accident". Unless there is an adjudication, the question of an amount falling due does not arise. 9. In view of what has been stated in Mubasir Ahmeds case (supra) the liability for interest would be in terms of what has been stated in paragraph 9 of the judgment.10. | 1[ds]In National Insurance co. Ltd. v. Mubasir Ahmed & Anr. [2007(2) SCC 349] it was, inter alia, held asis payable under Section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4-A was dealt with by this Court in Maghar Singh v. Jashwant Singh [(1998) 9 SCC 134] . By amending Act 30 of 1995, Section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub- section (2) of Section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is "falls due". Significantly, legislature has not used the expression "from the date of accident".Unless there is an adjudication, the question of an amount falling due does notview of what has been stated in Mubasir Ahmeds case (supra) the liability for interest would be in terms of what has been stated in paragraph 9 of the judgment. | 1 | 1,965 | 411 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
of the accident till the date of payment was also made payable by Respondent 9- insurance company.4. The claimants were satisfied with the said awards. Similarly the appellant-owner was also satisfied with the said awards. However, the insurance company carried the matter in appeals before the High Court and contended that the insurance company would be liable under the contract of insurance only to make good the claims for compensation so far as the principal amounts were concerned. But it could not have been made liable to pay the amounts of penalties with interest thereon as ordered by the Workmens Commissioner as these amounts of penal nature were awarded against the insured owner on account of his personal default as per Section 4-A(3) of the Compensation Act and for such default on the part of the insured the insurance company was not liable to reimburse the insured. As noted earlier, the said contention of Respondent 9-insurance company appealed to the High Court. The appeals were allowed and the awards of the Commissioner under the Compensation Act insofar as they fastened the liability to pay the penalty and interest on the insurance company were set aside. The amounts deposited in excess by the insurance company were ordered to be refunded to it while the remaining amounts were ordered to be paid to the claimants. It was, however, clarified that the claimants shall be at liberty to recover the amount of penalty and interest in accordance with law from the employer, appellant herein." 6. In Ved Prakash Garg v. Premi Devi and others [1997(8) SCC 1] this court observed that the Insurance Company is liable to pay not only the principal amount of compensation payable by the insurer employer but also interest thereon if ordered by the Commissioner to be paid by the insured, employee. Insurance company is liable to meet claim for compensation along with interest as imposed on insurer employer by the Act on conjoint operation of Section 3 and 4(A)(3)(a) of the Act. It was, however, held that it was the liability of the insured employer alone in respect of additional amount of compensation by way of penalty under Section 4(A)(3)(b) of the Act. In New India Assurance Co.s case (supra) and Ved Prakash Gargs case (supra) was distinguished on facts. It was observed that in the said case the court was not concerned with a case where an accident had occurred by use of motor vehicle in respect whereof the Contract of Insurance will be governed by the provisions of the Motor Vehicles Act, 1988 (in short the `M.V. Act). A contract of Insurance is governed by the provisions of the Insurance Act, 1938 (in short the `Insurance Act), unless the said contract is governed by the provisions of a statute. The parties are free to enter into a contract as per their own volition. The Act does not contain a provision like Section 148 of the MV Act where a statute does not provide for a compulsory insurance or accident thereof. The parties are free to choose their terms of contract. In that view of the matter contracting out so far as the reimbursement of amount of interest is concerned is not prohibited by a statute. This position have been reiterated in P.J. Narayan v. Union of India and others [2006 (5) SCC 200 ]. In the instant case the position is different. The accident in question arose on account of vehicular accident and provisions of MV Act are clearly applicable. We have gone through the policy of insurance and we find that no such exception as was the case in New India Assurance Co.s case was stipulated in the policy of insurance. Therefore, the Insurance Company is liable to pay the interest. 7. The further question arises as to from which date it would be paid. 8. In National Insurance co. Ltd. v. Mubasir Ahmed & Anr. [2007(2) SCC 349] it was, inter alia, held as follows: "Interest is payable under Section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4-A was dealt with by this Court in Maghar Singh v. Jashwant Singh [(1998) 9 SCC 134] . By amending Act 30 of 1995, Section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub- section (2) of Section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is "falls due". Significantly, legislature has not used the expression "from the date of accident". Unless there is an adjudication, the question of an amount falling due does not arise. 9. In view of what has been stated in Mubasir Ahmeds case (supra) the liability for interest would be in terms of what has been stated in paragraph 9 of the judgment.10.
### Response:
1
### Explanation:
In National Insurance co. Ltd. v. Mubasir Ahmed & Anr. [2007(2) SCC 349] it was, inter alia, held asis payable under Section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4-A was dealt with by this Court in Maghar Singh v. Jashwant Singh [(1998) 9 SCC 134] . By amending Act 30 of 1995, Section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub- section (2) of Section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is "falls due". Significantly, legislature has not used the expression "from the date of accident".Unless there is an adjudication, the question of an amount falling due does notview of what has been stated in Mubasir Ahmeds case (supra) the liability for interest would be in terms of what has been stated in paragraph 9 of the judgment.
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Om Prakash Vs. Suresh Kumar | decision, which reads thus: 32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyers statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the clients instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. (emphasis supplied) As aforesaid, in the present case, the counsel who was engaged by the appellant and had appeared for him before the High Court did not, stricto sensu, transgress the authority conferred on him by the appellant. Notably, the appellant filed review petition before the High Court by engaging another Advocate for reasons best known to him. This Court has deprecated the conduct of such petitioners and has opined that such review petitions should not be encouraged and need to be dismissed, as expounded in Tamil Nadu Electricity Board & Anr. vs. Raju Reddiar & Anr. (1997) 9 SCC 736 Not only that, even before this Court, the appellant, advisedly, showed willingness to explore possibility of settlement as is evident from different orders recorded above. It is obvious that the delivery of possession of the suit premises, then in possession of the respondent, was expedited and made over to the appellant only after intervention of this Court, which indulgence was shown because the appellant had expressed inclination to spare portion of premises for the respondent. Only after this Court intervened, the appellant could take the construction of proposed building forward and completed it on 19.6.2018. In terms of the order dated 14.11.2017 of this Court, it was made absolutely clear that the appellant will not put the newly constructed premises to use without seeking prior permission of this Court. That permission is yet to be given to the appellant. 12. The argument of the appellant that the respondent cannot take benefit of amendment to Section 14(3)(c) of the Himachal Pradesh Urban Rent Control Act, 1987 in the form of Himachal Pradesh Rent Control (Amendment) Act, 2008, will be of no avail to the fact situation of the present case. For, in this case, the appellant is obliged to abide by the unequivocal statement made before the Court to re-induct the respondent-tenant in the newly constructed building and to provide him same area which was being used by him earlier, namely, 36.53 square meters. Considering the above, the appellant cannot be permitted to extricate himself from the obligation flowing from the impression given to the Court (before the High Court and again before this Court) and need to be bound by the same. 13. However, from the subsequent affidavits filed before this Court, it is obvious that the entire ground floor cannot be given to the respondent. Initially, the appellant had given an offer to accommodate the respondent on the upper floor, but it is noticed that the staircase going towards the upper floors (namely, first and second floor) in the newly constructed building passes through the ground floor itself. The same is erected at the rear side within the building (being triplex house). The photographs produced before us, however, depict that an opening (exit door) is provided on the rear side of the building, on the ground floor, which opens towards plot No. 778 (which the appellant had transferred in favour of his son during the pendency of these appeals). In other words, it is possible to provide access to the upper floors from the rear side of the building, which also opens on the road (as a car parked at that entrance can be seen in the photographs) or portion of plot being khasra No. 778 (now owned by the appellants son). The fact remains that the staircase has been erected in such a manner, for the reasons best known to the appellant, that the access to first and second floors would be possible only through the ground floor premises, as it is inside the building and not outside the building. 14. At the conclusion of the proceedings, the learned counsel for the appellant without prejudice, gave offer to provide portion of the marked ground floor premises to the respondent, admeasuring 2.25 meters x 7.57 meters by carving out a passage within the ground floor providing access for upper floors through the staircase from the front door of the newly constructed building. The proposed ground floor plan, as submitted by the appellant through counsel is as follows: - IMAGE 15. This offer has been turned down by the respondent, firstly because the area of the premises will get reduced to just about 17.0325 square meters instead of the original area, admeasuring 36.53 square meters. Moreover, the premises, as offered, would be unusable for carrying on the business as cloth merchant therefrom. The width being just 2.25 meters (7.382 feet) will not be enough to accommodate sale counter and stock storage space; and moreso leaving no space for free movement of customers/sales persons. | 1[ds]From the tenor of the statement made before the High Court on behalf of the appellant, it is obvious that it is an unequivocal statement made by the counsel engaged by the appellant to espouse his (appellants) cause before the High Court. It is not the case of the appellant that he had expressly instructed his counsel not to make such a statement. Further, the statement was in respect of the commitment of the appellant qua the subject matter of the proceedings in which the counsel was engaged and instructed to appear. Not only that, right from the beginning and even before this Court, an attempt was made by the parties to explore possibility of working out an amicable solution, as is evident from the order dated 9.1.2017 before the respondent was put to notice of these appeals, and more particularly, dated 14.11.201710. Considering the above, the appellant cannot now be allowed to resile from the statement made before the High Court, which the High Court justly declined to undo in the review petition filed by the appellant for that purpose. In the peculiar facts of this case, the decision of this Court in Himalayan Coop. Group Housing Society (supra) will be of no avail to the appellant. Inasmuch as, it is not a case where the counsel, who made the statement was not engaged by the appellant before the High Court. The engagement was in respect of eviction proceedings and the statement was in relation to the commitment of the appellant qua the subject matter thereof and being an unequivocal statement, it will be binding on the appellant. In any case, even this Court showed indulgence to the appellant on the basis of impression given to this Court about the possibility of at least sparing a small room for the respondent, which was the basis for issuing notice to the respondent, as is evident from the orders dated 9.1.2017 and 15.2.2017As aforesaid, in the present case, the counsel who was engaged by the appellant and had appeared for him before the High Court did not, stricto sensu, transgress the authority conferred on him by the appellant. Notably, the appellant filed review petition before the High Court by engaging another Advocate for reasons best known to him. This Court has deprecated the conduct of such petitioners and has opined that such review petitions should not be encouraged and need to be dismissed, as expounded in Tamil Nadu Electricity Board & Anr. vs. Raju Reddiar & Anr. (1997) 9 SCC 736 Not only that, even before this Court, the appellant, advisedly, showed willingness to explore possibility of settlement as is evident from different orders recorded above. It is obvious that the delivery of possession of the suit premises, then in possession of the respondent, was expedited and made over to the appellant only after intervention of this Court, which indulgence was shown because the appellant had expressed inclination to spare portion of premises for the respondent. Only after this Court intervened, the appellant could take the construction of proposed building forward and completed it on 19.6.2018. In terms of the order dated 14.11.2017 of this Court, it was made absolutely clear that the appellant will not put the newly constructed premises to use without seeking prior permission of this Court. That permission is yet to be given to the appellant12. The argument of the appellant that the respondent cannot take benefit of amendment to Section 14(3)(c) of the Himachal Pradesh Urban Rent Control Act, 1987 in the form of Himachal Pradesh Rent Control (Amendment) Act, 2008, will be of no avail to the fact situation of the present case. For, in this case, the appellant is obliged to abide by the unequivocal statement made before the Court to re-induct the respondent-tenant in the newly constructed building and to provide him same area which was being used by him earlier, namely, 36.53 square meters. Considering the above, the appellant cannot be permitted to extricate himself from the obligation flowing from the impression given to the Court (before the High Court and again before this Court) and need to be bound by the same13. However, from the subsequent affidavits filed before this Court, it is obvious that the entire ground floor cannot be given to the respondent. Initially, the appellant had given an offer to accommodate the respondent on the upper floor, but it is noticed that the staircase going towards the upper floors (namely, first and second floor) in the newly constructed building passes through the ground floor itself. The same is erected at the rear side within the building (being triplex house). The photographs produced before us, however, depict that an opening (exit door) is provided on the rear side of the building, on the ground floor, which opens towards plot No. 778 (which the appellant had transferred in favour of his son during the pendency of these appeals). In other words, it is possible to provide access to the upper floors from the rear side of the building, which also opens on the road (as a car parked at that entrance can be seen in the photographs) or portion of plot being khasra No. 778 (now owned by the appellants son). The fact remains that the staircase has been erected in such a manner, for the reasons best known to the appellant, that the access to first and second floors would be possible only through the ground floor premises, as it is inside the building and not outside the building15. This offer has been turned down by the respondent, firstly because the area of the premises will get reduced to just about 17.0325 square meters instead of the original area, admeasuring 36.53 square meters. Moreover, the premises, as offered, would be unusable for carrying on the business as cloth merchant therefrom. The width being just 2.25 meters (7.382 feet) will not be enough to accommodate sale counter and stock storage space; and moreso leaving no space for free movement of customers/sales persons. | 1 | 3,721 | 1,131 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
decision, which reads thus: 32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyers statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the clients instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. (emphasis supplied) As aforesaid, in the present case, the counsel who was engaged by the appellant and had appeared for him before the High Court did not, stricto sensu, transgress the authority conferred on him by the appellant. Notably, the appellant filed review petition before the High Court by engaging another Advocate for reasons best known to him. This Court has deprecated the conduct of such petitioners and has opined that such review petitions should not be encouraged and need to be dismissed, as expounded in Tamil Nadu Electricity Board & Anr. vs. Raju Reddiar & Anr. (1997) 9 SCC 736 Not only that, even before this Court, the appellant, advisedly, showed willingness to explore possibility of settlement as is evident from different orders recorded above. It is obvious that the delivery of possession of the suit premises, then in possession of the respondent, was expedited and made over to the appellant only after intervention of this Court, which indulgence was shown because the appellant had expressed inclination to spare portion of premises for the respondent. Only after this Court intervened, the appellant could take the construction of proposed building forward and completed it on 19.6.2018. In terms of the order dated 14.11.2017 of this Court, it was made absolutely clear that the appellant will not put the newly constructed premises to use without seeking prior permission of this Court. That permission is yet to be given to the appellant. 12. The argument of the appellant that the respondent cannot take benefit of amendment to Section 14(3)(c) of the Himachal Pradesh Urban Rent Control Act, 1987 in the form of Himachal Pradesh Rent Control (Amendment) Act, 2008, will be of no avail to the fact situation of the present case. For, in this case, the appellant is obliged to abide by the unequivocal statement made before the Court to re-induct the respondent-tenant in the newly constructed building and to provide him same area which was being used by him earlier, namely, 36.53 square meters. Considering the above, the appellant cannot be permitted to extricate himself from the obligation flowing from the impression given to the Court (before the High Court and again before this Court) and need to be bound by the same. 13. However, from the subsequent affidavits filed before this Court, it is obvious that the entire ground floor cannot be given to the respondent. Initially, the appellant had given an offer to accommodate the respondent on the upper floor, but it is noticed that the staircase going towards the upper floors (namely, first and second floor) in the newly constructed building passes through the ground floor itself. The same is erected at the rear side within the building (being triplex house). The photographs produced before us, however, depict that an opening (exit door) is provided on the rear side of the building, on the ground floor, which opens towards plot No. 778 (which the appellant had transferred in favour of his son during the pendency of these appeals). In other words, it is possible to provide access to the upper floors from the rear side of the building, which also opens on the road (as a car parked at that entrance can be seen in the photographs) or portion of plot being khasra No. 778 (now owned by the appellants son). The fact remains that the staircase has been erected in such a manner, for the reasons best known to the appellant, that the access to first and second floors would be possible only through the ground floor premises, as it is inside the building and not outside the building. 14. At the conclusion of the proceedings, the learned counsel for the appellant without prejudice, gave offer to provide portion of the marked ground floor premises to the respondent, admeasuring 2.25 meters x 7.57 meters by carving out a passage within the ground floor providing access for upper floors through the staircase from the front door of the newly constructed building. The proposed ground floor plan, as submitted by the appellant through counsel is as follows: - IMAGE 15. This offer has been turned down by the respondent, firstly because the area of the premises will get reduced to just about 17.0325 square meters instead of the original area, admeasuring 36.53 square meters. Moreover, the premises, as offered, would be unusable for carrying on the business as cloth merchant therefrom. The width being just 2.25 meters (7.382 feet) will not be enough to accommodate sale counter and stock storage space; and moreso leaving no space for free movement of customers/sales persons.
### Response:
1
### Explanation:
the statement made before the High Court on behalf of the appellant, it is obvious that it is an unequivocal statement made by the counsel engaged by the appellant to espouse his (appellants) cause before the High Court. It is not the case of the appellant that he had expressly instructed his counsel not to make such a statement. Further, the statement was in respect of the commitment of the appellant qua the subject matter of the proceedings in which the counsel was engaged and instructed to appear. Not only that, right from the beginning and even before this Court, an attempt was made by the parties to explore possibility of working out an amicable solution, as is evident from the order dated 9.1.2017 before the respondent was put to notice of these appeals, and more particularly, dated 14.11.201710. Considering the above, the appellant cannot now be allowed to resile from the statement made before the High Court, which the High Court justly declined to undo in the review petition filed by the appellant for that purpose. In the peculiar facts of this case, the decision of this Court in Himalayan Coop. Group Housing Society (supra) will be of no avail to the appellant. Inasmuch as, it is not a case where the counsel, who made the statement was not engaged by the appellant before the High Court. The engagement was in respect of eviction proceedings and the statement was in relation to the commitment of the appellant qua the subject matter thereof and being an unequivocal statement, it will be binding on the appellant. In any case, even this Court showed indulgence to the appellant on the basis of impression given to this Court about the possibility of at least sparing a small room for the respondent, which was the basis for issuing notice to the respondent, as is evident from the orders dated 9.1.2017 and 15.2.2017As aforesaid, in the present case, the counsel who was engaged by the appellant and had appeared for him before the High Court did not, stricto sensu, transgress the authority conferred on him by the appellant. Notably, the appellant filed review petition before the High Court by engaging another Advocate for reasons best known to him. This Court has deprecated the conduct of such petitioners and has opined that such review petitions should not be encouraged and need to be dismissed, as expounded in Tamil Nadu Electricity Board & Anr. vs. Raju Reddiar & Anr. (1997) 9 SCC 736 Not only that, even before this Court, the appellant, advisedly, showed willingness to explore possibility of settlement as is evident from different orders recorded above. It is obvious that the delivery of possession of the suit premises, then in possession of the respondent, was expedited and made over to the appellant only after intervention of this Court, which indulgence was shown because the appellant had expressed inclination to spare portion of premises for the respondent. Only after this Court intervened, the appellant could take the construction of proposed building forward and completed it on 19.6.2018. In terms of the order dated 14.11.2017 of this Court, it was made absolutely clear that the appellant will not put the newly constructed premises to use without seeking prior permission of this Court. That permission is yet to be given to the appellant12. The argument of the appellant that the respondent cannot take benefit of amendment to Section 14(3)(c) of the Himachal Pradesh Urban Rent Control Act, 1987 in the form of Himachal Pradesh Rent Control (Amendment) Act, 2008, will be of no avail to the fact situation of the present case. For, in this case, the appellant is obliged to abide by the unequivocal statement made before the Court to re-induct the respondent-tenant in the newly constructed building and to provide him same area which was being used by him earlier, namely, 36.53 square meters. Considering the above, the appellant cannot be permitted to extricate himself from the obligation flowing from the impression given to the Court (before the High Court and again before this Court) and need to be bound by the same13. However, from the subsequent affidavits filed before this Court, it is obvious that the entire ground floor cannot be given to the respondent. Initially, the appellant had given an offer to accommodate the respondent on the upper floor, but it is noticed that the staircase going towards the upper floors (namely, first and second floor) in the newly constructed building passes through the ground floor itself. The same is erected at the rear side within the building (being triplex house). The photographs produced before us, however, depict that an opening (exit door) is provided on the rear side of the building, on the ground floor, which opens towards plot No. 778 (which the appellant had transferred in favour of his son during the pendency of these appeals). In other words, it is possible to provide access to the upper floors from the rear side of the building, which also opens on the road (as a car parked at that entrance can be seen in the photographs) or portion of plot being khasra No. 778 (now owned by the appellants son). The fact remains that the staircase has been erected in such a manner, for the reasons best known to the appellant, that the access to first and second floors would be possible only through the ground floor premises, as it is inside the building and not outside the building15. This offer has been turned down by the respondent, firstly because the area of the premises will get reduced to just about 17.0325 square meters instead of the original area, admeasuring 36.53 square meters. Moreover, the premises, as offered, would be unusable for carrying on the business as cloth merchant therefrom. The width being just 2.25 meters (7.382 feet) will not be enough to accommodate sale counter and stock storage space; and moreso leaving no space for free movement of customers/sales persons.
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R.R. INAMDAR Vs. THE STATE OF KARNATAKA | Bihar (1988) 2 SCC 214 to the effect that there could be no reservation in respect of a single post. This was, however, sought to be distinguished by the State in K Govindappa (supra). This Court held:?While there can be no difference of opinion that the expressions "cadre", "post" and "service" cannot be equated with each other, at the same time the submission that single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of inter- changeability of posts in the different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100% reservation as envisaged in Article 16(1) of the Constitution.? (emphasis supplied) The Court held that the case fell within the category of a single or isolated post within a cadre in respect of which the rule of reservation was inapplicable. In other words, each discipline which consisted of a single post was required to be dealt with as a separate cadre for the said discipline, particularly, having regard to the fact that the several disciplines were confined only to one college. 4. A similar issue arose in a subsequent decision in State of Uttar Pradesh v Bharat Singh (2011) 4 SCC 120 , where this Court held that:?It is abundantly clear from the above that the attribute of interchangeability and transferability is missing in the case of Principals - in much the same measure as in the case of teachers, in the lower cadre. We have, therefore, no hesitation in holding that there is no cadre of Principals serving in different aided and affiliated institutions and that the Principals post is a solitary post in an institution. Reservation of such a post is clearly impermissible not only because the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 provides for reservation based on the `cadre strength in aided institutions but also because such strength being limited to only one post in the cadre is legally not amenable to reservations in the light of the pronouncement of this Court to which we shall presently refer.? (emphasis supplied) 5. We may also note at this stage that on 19 January 2017, a two- Judge Bench of this Court in Sanjeev Kumar v State of Uttar Pradesh (Civil Appeal Nos 6385-6386 of 2010) affirmed a similar view of the Allahabad High Court, observing as follows:?We have heard learned counsel for the parties at length. We are in agreement with the view taken in the impugned judgment. The judgment of the High Court is accordingly affirmed. The civil appeals are accordingly dismissed. No costs. Pending applications, if any, shall also stand disposed of.?6. These decisions were sought to be distinguished by Mr S N Bhat, learned counsel appearing on behalf of the appellant, by relying on a circular of the State of Karnataka dated 31 May 1991. The following provisions of the circular were in particular sought to be emphasised:?The roster system be maintained unit-wise (i.e, one school or college is an unit even if the management is running more than one school or colleges). The roster should be maintained for the teaching and non teaching staff separately and not subject-wise as is being done now.?7. Mr Bhat urged that the above provisions would demonstrate that the roster has to be maintained unit-wise so that each school or college would be treated as a unit in a situation where a management is running more than one institution. Moreover, the roster is to be maintained for the teaching and non-teaching staff separately and not subject-wise. The submission was that the circular dated 31 May 1991 did not fall for consideration before the two-Judge Bench in K Govindappa (supra). 8. We are unable to accept the submission for more than one reason. The circular dated 31 May 1991 is prior to the decision of the Constitution Bench in Post Graduate Institute of Medical Education and Research (supra). As a matter of fact, the circular is prior to the decision in K Govindappa (supra) as well. The principle which has been enunciated by this Court is that there can be no reservation of a solitary post and that in order to apply the rule of reservation within a cadre, there must be a plurality of posts. Where there is no interchangeability of the posts in different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. If this principle were not to be followed, reservation would be in breach of the ceiling governed by the decisions of this Court. A circular, of the nature that has been issued by the State of Karnataka, cannot take away the binding effect of the decisions of this Court interpreting the policy of reservation in the context of Article 16(4). 9. For the above reasons, we are of the view that the judgment of the High Court cannot be faulted and is consistent with the law which has been laid down by this Court. However, in the alternative, Mr Bhat has submitted that the appellant has continued to work as a Lecturer in English since her appointment on 28 September 2002 and during the pendency of this appeal, she has been protected by an order of status quo since 16 February 2016. He stated that the management has submitted a proposal to the State of Karnataka for the appointment of the appellant to a second post which was not acceded to by the State of Karnataka. 10. | 1[ds]We are unable to accept the submission for more than one reason. The circular dated 31 May 1991 is prior to the decision of the Constitution Bench in Post Graduate Institute of Medical Education and Research (supra). As a matter of fact, the circular is prior to the decision in K Govindappa (supra) as well. The principle which has been enunciated by this Court is that there can be no reservation of a solitary post and that in order to apply the rule of reservation within a cadre, there must be a plurality of posts. Where there is no interchangeability of the posts in different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. If this principle were not to be followed, reservation would be in breach of the ceiling governed by the decisions of this Court. A circular, of the nature that has been issued by the State of Karnataka, cannot take away the binding effect of the decisions of this Court interpreting the policy of reservation in the context of Article 16(4).For the above reasons, we are of the view that the judgment of the High Court cannot be faulted and is consistent with the law which has been laid down by this Court. However, in the alternative, Mr Bhat has submitted that the appellant has continued to work as a Lecturer in English since her appointment on 28 September 2002 and during the pendency of this appeal, she has been protected by an order of status quo since 16 February 2016. He stated that the management has submitted a proposal to the State of Karnataka for the appointment of the appellant to a second post which was not acceded to by the State of Karnataka.We are unable to accept the submission for more than one reason. The circular dated 31 May 1991 is prior to the decision of the Constitution Bench in Post Graduate Institute of Medical Education and Research (supra). As a matter of fact, the circular is prior to the decision in K Govindappa (supra) as well. The principle which has been enunciated by this Court is that there can be no reservation of a solitary post and that in order to apply the rule of reservation within a cadre, there must be a plurality of posts. Where there is no interchangeability of the posts in different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. If this principle were not to be followed, reservation would be in breach of the ceiling governed by the decisions of this Court. A circular, of the nature that has been issued by the State of Karnataka, cannot take away the binding effect of the decisions of this Court interpreting the policy of reservation in the context of Article 16(4).r the above reasons, we are of the view that the judgment of the High Court cannot be faulted and is consistent with the law which has been laid down by this Court. However, in the alternative, Mr Bhat has submitted that the appellant has continued to work as a Lecturer in English since her appointment on 28 September 2002 and during the pendency of this appeal, she has been protected by an order of status quo since 16 February 2016. He stated that the management has submitted a proposal to the State of Karnataka for the appointment of the appellant to a second post which was not acceded to by the State of Karnataka. | 1 | 1,725 | 684 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
Bihar (1988) 2 SCC 214 to the effect that there could be no reservation in respect of a single post. This was, however, sought to be distinguished by the State in K Govindappa (supra). This Court held:?While there can be no difference of opinion that the expressions "cadre", "post" and "service" cannot be equated with each other, at the same time the submission that single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of inter- changeability of posts in the different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100% reservation as envisaged in Article 16(1) of the Constitution.? (emphasis supplied) The Court held that the case fell within the category of a single or isolated post within a cadre in respect of which the rule of reservation was inapplicable. In other words, each discipline which consisted of a single post was required to be dealt with as a separate cadre for the said discipline, particularly, having regard to the fact that the several disciplines were confined only to one college. 4. A similar issue arose in a subsequent decision in State of Uttar Pradesh v Bharat Singh (2011) 4 SCC 120 , where this Court held that:?It is abundantly clear from the above that the attribute of interchangeability and transferability is missing in the case of Principals - in much the same measure as in the case of teachers, in the lower cadre. We have, therefore, no hesitation in holding that there is no cadre of Principals serving in different aided and affiliated institutions and that the Principals post is a solitary post in an institution. Reservation of such a post is clearly impermissible not only because the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 provides for reservation based on the `cadre strength in aided institutions but also because such strength being limited to only one post in the cadre is legally not amenable to reservations in the light of the pronouncement of this Court to which we shall presently refer.? (emphasis supplied) 5. We may also note at this stage that on 19 January 2017, a two- Judge Bench of this Court in Sanjeev Kumar v State of Uttar Pradesh (Civil Appeal Nos 6385-6386 of 2010) affirmed a similar view of the Allahabad High Court, observing as follows:?We have heard learned counsel for the parties at length. We are in agreement with the view taken in the impugned judgment. The judgment of the High Court is accordingly affirmed. The civil appeals are accordingly dismissed. No costs. Pending applications, if any, shall also stand disposed of.?6. These decisions were sought to be distinguished by Mr S N Bhat, learned counsel appearing on behalf of the appellant, by relying on a circular of the State of Karnataka dated 31 May 1991. The following provisions of the circular were in particular sought to be emphasised:?The roster system be maintained unit-wise (i.e, one school or college is an unit even if the management is running more than one school or colleges). The roster should be maintained for the teaching and non teaching staff separately and not subject-wise as is being done now.?7. Mr Bhat urged that the above provisions would demonstrate that the roster has to be maintained unit-wise so that each school or college would be treated as a unit in a situation where a management is running more than one institution. Moreover, the roster is to be maintained for the teaching and non-teaching staff separately and not subject-wise. The submission was that the circular dated 31 May 1991 did not fall for consideration before the two-Judge Bench in K Govindappa (supra). 8. We are unable to accept the submission for more than one reason. The circular dated 31 May 1991 is prior to the decision of the Constitution Bench in Post Graduate Institute of Medical Education and Research (supra). As a matter of fact, the circular is prior to the decision in K Govindappa (supra) as well. The principle which has been enunciated by this Court is that there can be no reservation of a solitary post and that in order to apply the rule of reservation within a cadre, there must be a plurality of posts. Where there is no interchangeability of the posts in different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. If this principle were not to be followed, reservation would be in breach of the ceiling governed by the decisions of this Court. A circular, of the nature that has been issued by the State of Karnataka, cannot take away the binding effect of the decisions of this Court interpreting the policy of reservation in the context of Article 16(4). 9. For the above reasons, we are of the view that the judgment of the High Court cannot be faulted and is consistent with the law which has been laid down by this Court. However, in the alternative, Mr Bhat has submitted that the appellant has continued to work as a Lecturer in English since her appointment on 28 September 2002 and during the pendency of this appeal, she has been protected by an order of status quo since 16 February 2016. He stated that the management has submitted a proposal to the State of Karnataka for the appointment of the appellant to a second post which was not acceded to by the State of Karnataka. 10.
### Response:
1
### Explanation:
We are unable to accept the submission for more than one reason. The circular dated 31 May 1991 is prior to the decision of the Constitution Bench in Post Graduate Institute of Medical Education and Research (supra). As a matter of fact, the circular is prior to the decision in K Govindappa (supra) as well. The principle which has been enunciated by this Court is that there can be no reservation of a solitary post and that in order to apply the rule of reservation within a cadre, there must be a plurality of posts. Where there is no interchangeability of the posts in different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. If this principle were not to be followed, reservation would be in breach of the ceiling governed by the decisions of this Court. A circular, of the nature that has been issued by the State of Karnataka, cannot take away the binding effect of the decisions of this Court interpreting the policy of reservation in the context of Article 16(4).For the above reasons, we are of the view that the judgment of the High Court cannot be faulted and is consistent with the law which has been laid down by this Court. However, in the alternative, Mr Bhat has submitted that the appellant has continued to work as a Lecturer in English since her appointment on 28 September 2002 and during the pendency of this appeal, she has been protected by an order of status quo since 16 February 2016. He stated that the management has submitted a proposal to the State of Karnataka for the appointment of the appellant to a second post which was not acceded to by the State of Karnataka.We are unable to accept the submission for more than one reason. The circular dated 31 May 1991 is prior to the decision of the Constitution Bench in Post Graduate Institute of Medical Education and Research (supra). As a matter of fact, the circular is prior to the decision in K Govindappa (supra) as well. The principle which has been enunciated by this Court is that there can be no reservation of a solitary post and that in order to apply the rule of reservation within a cadre, there must be a plurality of posts. Where there is no interchangeability of the posts in different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. If this principle were not to be followed, reservation would be in breach of the ceiling governed by the decisions of this Court. A circular, of the nature that has been issued by the State of Karnataka, cannot take away the binding effect of the decisions of this Court interpreting the policy of reservation in the context of Article 16(4).r the above reasons, we are of the view that the judgment of the High Court cannot be faulted and is consistent with the law which has been laid down by this Court. However, in the alternative, Mr Bhat has submitted that the appellant has continued to work as a Lecturer in English since her appointment on 28 September 2002 and during the pendency of this appeal, she has been protected by an order of status quo since 16 February 2016. He stated that the management has submitted a proposal to the State of Karnataka for the appointment of the appellant to a second post which was not acceded to by the State of Karnataka.
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Oriental Insurance Co.Ltd Vs. Porselvi | Dr. Arijit Pasayat, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by a learned single Judge of the Allahabad High Court dismissing the appeal filed by the present appellant under Sec. 173 of the Motor Vehicle Act, 1988 (in short the Act). 3. The factual position is almost undisputed and the only dispute relates to the date of commencement of the policy i.e. the date from which the policy was in operation. The accident took place on 28/5/1996. The policy covers the period from 29/5/1996 to 28/5/1997. 4. The High Court in para 13 of the impugned judgment held as follows: "As the cover note has already been issued on 28.5.1996 itself, which is also entered in Ex. B1, Policy, the finding of the Tribunal fastening liability on the appellant cannot be termed as perverse. In view of the above discussion, there is no merit in this appeal. The quantum of compensation has not been disputed by the appellant – Insurance Company. In the result, the Civil Miscellaneous Appeal fails and the same is dismissed." 5. Learned counsel for the appellant brought to our notice the cover note which clearly indicates that the policy was valid from 29/5/1996 to 28/5/1997 though it was issued on 28/5/1996. A copy of the policy was brought on record. Relevant portion thereof reads as follows: "Effective date of commencement of insurance for the purpose of the Act, from O clock on (date) 29.5.1996 to midnight of 28.5.1997." 6. A three Judge Bench of this Court in New India Assurance Co. Ltd. Vs. Sita Bai (Smt.) and Ors. [(1999) 7 SCC 575) inter alia observed as follows : "6. The correctness and applicability of the judgment in Ram Dayal case [(1990) 2 SCC 680] came up for consideration before this Court subsequently in a number of cases. In New India Assurance Co. vs. Bhagwati Devi [(1998) 6 SCC 534] a three-Judge Bench of this Court relied upon the view taken in National Insurance Co. Ltd. vs. Jikubhai Nathuji Dabhi [(1997) 1 SCC 66] wherein it had been held that if there is a special contract, mentioning in the policy the time when it was bought, the insurance policy would be operative from that time and not from the previous midnight as was the case in Ram Dayal case where no time from which the insurance policy was to become effective had been mentioned. It was held that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following, but in cases where there is a mention of the specific time for the purchase of the policy, then a special contract comes into being and the policy becomes effective from the time mentioned in the cover note/the policy itself. The judgment in Jikubhai case has been subsequently followed in Oriental Insurance Co. Ltd. vs. Sunita Rathi [(1998) 1 SCC 365] by a three-Judge Bench of this Court also." 7. | 1[ds]A three Judge Bench of this Court in New India Assurance Co. Ltd. Vs. Sita Bai (Smt.) and Ors. [(1999) 7 SCC 575) inter alia observed as followsThe correctness and applicability of the judgment in Ram Dayal case [(1990) 2 SCC 680] came up for consideration before this Court subsequently in a number of cases. In New India Assurance Co. vs. Bhagwati Devi [(1998) 6 SCC 534] aBench of this Court relied upon the view taken in National Insurance Co. Ltd. vs. Jikubhai Nathuji Dabhi [(1997) 1 SCC 66] wherein it had been held that if there is a special contract, mentioning in the policy the time when it was bought, the insurance policy would be operative from that time and not from the previous midnight as was the case in Ram Dayal case where no time from which the insurance policy was to become effective had been mentioned. It was held that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following, but in cases where there is a mention of the specific time for the purchase of the policy, then a special contract comes into being and the policy becomes effective from the time mentioned in the cover note/the policy itself. The judgment in Jikubhai case has been subsequently followed in Oriental Insurance Co. Ltd. vs. Sunita Rathi [(1998) 1 SCC 365] by aBench of this Court also. | 1 | 581 | 282 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
Dr. Arijit Pasayat, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by a learned single Judge of the Allahabad High Court dismissing the appeal filed by the present appellant under Sec. 173 of the Motor Vehicle Act, 1988 (in short the Act). 3. The factual position is almost undisputed and the only dispute relates to the date of commencement of the policy i.e. the date from which the policy was in operation. The accident took place on 28/5/1996. The policy covers the period from 29/5/1996 to 28/5/1997. 4. The High Court in para 13 of the impugned judgment held as follows: "As the cover note has already been issued on 28.5.1996 itself, which is also entered in Ex. B1, Policy, the finding of the Tribunal fastening liability on the appellant cannot be termed as perverse. In view of the above discussion, there is no merit in this appeal. The quantum of compensation has not been disputed by the appellant – Insurance Company. In the result, the Civil Miscellaneous Appeal fails and the same is dismissed." 5. Learned counsel for the appellant brought to our notice the cover note which clearly indicates that the policy was valid from 29/5/1996 to 28/5/1997 though it was issued on 28/5/1996. A copy of the policy was brought on record. Relevant portion thereof reads as follows: "Effective date of commencement of insurance for the purpose of the Act, from O clock on (date) 29.5.1996 to midnight of 28.5.1997." 6. A three Judge Bench of this Court in New India Assurance Co. Ltd. Vs. Sita Bai (Smt.) and Ors. [(1999) 7 SCC 575) inter alia observed as follows : "6. The correctness and applicability of the judgment in Ram Dayal case [(1990) 2 SCC 680] came up for consideration before this Court subsequently in a number of cases. In New India Assurance Co. vs. Bhagwati Devi [(1998) 6 SCC 534] a three-Judge Bench of this Court relied upon the view taken in National Insurance Co. Ltd. vs. Jikubhai Nathuji Dabhi [(1997) 1 SCC 66] wherein it had been held that if there is a special contract, mentioning in the policy the time when it was bought, the insurance policy would be operative from that time and not from the previous midnight as was the case in Ram Dayal case where no time from which the insurance policy was to become effective had been mentioned. It was held that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following, but in cases where there is a mention of the specific time for the purchase of the policy, then a special contract comes into being and the policy becomes effective from the time mentioned in the cover note/the policy itself. The judgment in Jikubhai case has been subsequently followed in Oriental Insurance Co. Ltd. vs. Sunita Rathi [(1998) 1 SCC 365] by a three-Judge Bench of this Court also." 7.
### Response:
1
### Explanation:
A three Judge Bench of this Court in New India Assurance Co. Ltd. Vs. Sita Bai (Smt.) and Ors. [(1999) 7 SCC 575) inter alia observed as followsThe correctness and applicability of the judgment in Ram Dayal case [(1990) 2 SCC 680] came up for consideration before this Court subsequently in a number of cases. In New India Assurance Co. vs. Bhagwati Devi [(1998) 6 SCC 534] aBench of this Court relied upon the view taken in National Insurance Co. Ltd. vs. Jikubhai Nathuji Dabhi [(1997) 1 SCC 66] wherein it had been held that if there is a special contract, mentioning in the policy the time when it was bought, the insurance policy would be operative from that time and not from the previous midnight as was the case in Ram Dayal case where no time from which the insurance policy was to become effective had been mentioned. It was held that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following, but in cases where there is a mention of the specific time for the purchase of the policy, then a special contract comes into being and the policy becomes effective from the time mentioned in the cover note/the policy itself. The judgment in Jikubhai case has been subsequently followed in Oriental Insurance Co. Ltd. vs. Sunita Rathi [(1998) 1 SCC 365] by aBench of this Court also.
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The State Of Orissa Vs. Sudhansu Sekhar Misra And Ors | v. Flood, (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.15. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it. Neither Bagchis case, 1966-1 SCR 771 : (AIR 1966 SC 447 ) nor Ranga Mahammads case, 1967-1 SCR 454 : (AIR 1967 SC 903 ) is of any assistance to us in deciding the question whether the High Court has competence to fill some of the posts in the secretariat by transfer of judicial officers under its control. Just as the executive cannot know the requirements of a particular court, the High Court also can not know the requirements of any post in the secretariat. Just as the High Court resents any interference by the executive in the functioning of the judiciary, the executive has a right to ask the High Court not to interfere with its functions. It is for the executive to say whether a particular officer would meet its requirements or not. The High Court cannot, as contended by the learned Attorney-General, foist any officer on the government.16. The cadre with which we are concerned in this case consists of three parts i.e., (1) presiding officers of district courts, (2) the Registrar of the High Court and (3) the judicial officers working in the secretariat. No doubt all these officers belong to the judicial service of the State and they were before 1962 presiding over district courts or courts subordinate to them and as such were under the control of the High Court.Hence without the consent of the High Court the government could not have posted them to administrative posts in 1962. It must be presumed that they were taken over by the government with the consent of the High Court. While sparing the service of any judicial officer to the government It is open to the High Court to fix the period during which he may hold any executive post. At the end of that period, the government is bound to allow him to go back to his parent department unless the High Court agrees to spare his services for some more time. In other words, the period during which a judicial officer should serve in an executive post must be settled by agreement between the High Court and the government. If there is no such agreement, it is open to the government to send him back to his parent department at any time it pleases. It is equally open to the High Court to recall him whenever it thinks fit. If only there is mutual understanding and appreciation of the difficulties of the one by the other, there will be harmony.There is no reason why there should be any conflict between the High Court and the government. Except for very good reasons we think the High Court should always be willing, to spare for an agreed period the services of any of the officers under its control for filling up such executive posts as may require the services of judicial officers.The government, in its turn should appreciate the anxiety of the High Court that judicial officers should not be allowed to acquire vested interest in the secretariat. Both the High Court and the government should not forget the fact that powers are conferred on them for the good of the public and they should act in such a way as to advance public interest. If they act with that purpose in view as they should, then there is no room for conflict and no question of one dominating the other arises. Each of the organs of the State has a special role of its own. But our constitution expects all of them to work in harmony in a spirit of service.17. As Shri K. K. Bose and Shri B. K. Patro had not been placed at the disposal of the government for any definite period, it was open to the High Court to recall them and post them as presiding officers of district courts. Hence, the High Court was within its powers in posting Shri B. K. Patro as district and sessions judge of Ganjam-Boudh division, Shri K. K. Bose as district and sessions judge of Mayurbhanj-Keonjhar division, and Shri P. C. Dey, as district and sessions judge of. Bolangir-Kalahandi division though it would have been graceful if it had effected those transfers after reasonable notice to the government. But it was beyond the powers of the High Court to post Shri K. B. Panda as the law secretary Shri T. Misra as superintendent and legal remembrancer and Shri P. K. Mohanti a. the deputy law secretary. That part of the High Courts order is clearly unsustainable.But as mentioned earlier, the government has already implemented that part of the order as well. Those officers are now functioning in the posts to which they were transferred. The learned Attorney-General told us that the government has no objection to those officers continuing in those posts for the present. We are sure if any change is required the same will be effected by mutual understanding between the High Court and the government.18. | 1[ds]9. It was not the case of the contesting respondents that Shri P. C. Dey, Shri K. K. Bose and Shri B. K. Patro had not the necessary qualifications to hold the posts they were holding. It was also not disputed that they had been validly appointed to those posts. In these circumstances we fall to see how the High Court could have held that they had no authority to hold the posts in question. Shir Sarjoo Prasad reamed counsel for the High Court of Orissa at the very commencement of his arguments con ceded that the order of the High Court holding that those officers had no authority to hold the posts in question is unsustainable. In view of that concession it is unnecessary for us to go into that question further.The cadre with which we are concerned in this case consists of three parts i.e., (1) presiding officers of district courts, (2) the Registrar of the High Court and (3) the judicial officers working in the secretariat. No doubt all these officers belong to the judicial service of the State and they were before 1962 presiding over district courts or courts subordinate to them and as such were under the control of the High Court.Hence without the consent of the High Court the government could not have posted them to administrative posts in 1962. It must be presumed that they were taken over by the government with the consent of the High Court. While sparing the service of any judicial officer to the government It is open to the High Court to fix the period during which he may hold any executive post. At the end of that period, the government is bound to allow him to go back to his parent department unless the High Court agrees to spare his services for some more time. In other words, the period during which a judicial officer should serve in an executive post must be settled by agreement between the High Court and the government. If there is no such agreement, it is open to the government to send him back to his parent department at any time it pleases. It is equally open to the High Court to recall him whenever it thinks fit. If only there is mutual understanding and appreciation of the difficulties of the one by the other, there will be harmony.There is no reason why there should be any conflict between the High Court and the government. Except for very good reasons we think the High Court should always be willing, to spare for an agreed period the services of any of the officers under its control for filling up such executive posts as may require the services of judicial officers.The government, in its turn should appreciate the anxiety of the High Court that judicial officers should not be allowed to acquire vested interest in the secretariat. Both the High Court and the government should not forget the fact that powers are conferred on them for the good of the public and they should act in such a way as to advance public interest. If they act with that purpose in view as they should, then there is no room for conflict and no question of one dominating the other arises. Each of the organs of the State has a special role of its own. But our constitution expects all of them to work in harmony in a spirit of service.As Shri K. K. Bose and Shri B. K. Patro had not been placed at the disposal of the government for any definite period, it was open to the High Court to recall them and post them as presiding officers of district courts. Hence, the High Court was within its powers in posting Shri B. K. Patro as district and sessions judge of Ganjam-Boudh division, Shri K. K. Bose as district and sessions judge of Mayurbhanj-Keonjhar division, and Shri P. C. Dey, as district and sessions judge of. Bolangir-Kalahandi division though it would have been graceful if it had effected those transfers after reasonable notice to the government. But it was beyond the powers of the High Court to post Shri K. B. Panda as the law secretary Shri T. Misra as superintendent and legal remembrancer and Shri P. K. Mohanti a. the deputy law secretary. That part of the High Courts order is clearly unsustainable.But as mentioned earlier, the government has already implemented that part of the order as well. Those officers are now functioning in the posts to which they were transferred. The learned Attorney-General told us that the government has no objection to those officers continuing in those posts for the present. We are sure if any change is required the same will be effected by mutual understanding between the High Court and the government. | 1 | 4,564 | 856 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
v. Flood, (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.15. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it. Neither Bagchis case, 1966-1 SCR 771 : (AIR 1966 SC 447 ) nor Ranga Mahammads case, 1967-1 SCR 454 : (AIR 1967 SC 903 ) is of any assistance to us in deciding the question whether the High Court has competence to fill some of the posts in the secretariat by transfer of judicial officers under its control. Just as the executive cannot know the requirements of a particular court, the High Court also can not know the requirements of any post in the secretariat. Just as the High Court resents any interference by the executive in the functioning of the judiciary, the executive has a right to ask the High Court not to interfere with its functions. It is for the executive to say whether a particular officer would meet its requirements or not. The High Court cannot, as contended by the learned Attorney-General, foist any officer on the government.16. The cadre with which we are concerned in this case consists of three parts i.e., (1) presiding officers of district courts, (2) the Registrar of the High Court and (3) the judicial officers working in the secretariat. No doubt all these officers belong to the judicial service of the State and they were before 1962 presiding over district courts or courts subordinate to them and as such were under the control of the High Court.Hence without the consent of the High Court the government could not have posted them to administrative posts in 1962. It must be presumed that they were taken over by the government with the consent of the High Court. While sparing the service of any judicial officer to the government It is open to the High Court to fix the period during which he may hold any executive post. At the end of that period, the government is bound to allow him to go back to his parent department unless the High Court agrees to spare his services for some more time. In other words, the period during which a judicial officer should serve in an executive post must be settled by agreement between the High Court and the government. If there is no such agreement, it is open to the government to send him back to his parent department at any time it pleases. It is equally open to the High Court to recall him whenever it thinks fit. If only there is mutual understanding and appreciation of the difficulties of the one by the other, there will be harmony.There is no reason why there should be any conflict between the High Court and the government. Except for very good reasons we think the High Court should always be willing, to spare for an agreed period the services of any of the officers under its control for filling up such executive posts as may require the services of judicial officers.The government, in its turn should appreciate the anxiety of the High Court that judicial officers should not be allowed to acquire vested interest in the secretariat. Both the High Court and the government should not forget the fact that powers are conferred on them for the good of the public and they should act in such a way as to advance public interest. If they act with that purpose in view as they should, then there is no room for conflict and no question of one dominating the other arises. Each of the organs of the State has a special role of its own. But our constitution expects all of them to work in harmony in a spirit of service.17. As Shri K. K. Bose and Shri B. K. Patro had not been placed at the disposal of the government for any definite period, it was open to the High Court to recall them and post them as presiding officers of district courts. Hence, the High Court was within its powers in posting Shri B. K. Patro as district and sessions judge of Ganjam-Boudh division, Shri K. K. Bose as district and sessions judge of Mayurbhanj-Keonjhar division, and Shri P. C. Dey, as district and sessions judge of. Bolangir-Kalahandi division though it would have been graceful if it had effected those transfers after reasonable notice to the government. But it was beyond the powers of the High Court to post Shri K. B. Panda as the law secretary Shri T. Misra as superintendent and legal remembrancer and Shri P. K. Mohanti a. the deputy law secretary. That part of the High Courts order is clearly unsustainable.But as mentioned earlier, the government has already implemented that part of the order as well. Those officers are now functioning in the posts to which they were transferred. The learned Attorney-General told us that the government has no objection to those officers continuing in those posts for the present. We are sure if any change is required the same will be effected by mutual understanding between the High Court and the government.18.
### Response:
1
### Explanation:
9. It was not the case of the contesting respondents that Shri P. C. Dey, Shri K. K. Bose and Shri B. K. Patro had not the necessary qualifications to hold the posts they were holding. It was also not disputed that they had been validly appointed to those posts. In these circumstances we fall to see how the High Court could have held that they had no authority to hold the posts in question. Shir Sarjoo Prasad reamed counsel for the High Court of Orissa at the very commencement of his arguments con ceded that the order of the High Court holding that those officers had no authority to hold the posts in question is unsustainable. In view of that concession it is unnecessary for us to go into that question further.The cadre with which we are concerned in this case consists of three parts i.e., (1) presiding officers of district courts, (2) the Registrar of the High Court and (3) the judicial officers working in the secretariat. No doubt all these officers belong to the judicial service of the State and they were before 1962 presiding over district courts or courts subordinate to them and as such were under the control of the High Court.Hence without the consent of the High Court the government could not have posted them to administrative posts in 1962. It must be presumed that they were taken over by the government with the consent of the High Court. While sparing the service of any judicial officer to the government It is open to the High Court to fix the period during which he may hold any executive post. At the end of that period, the government is bound to allow him to go back to his parent department unless the High Court agrees to spare his services for some more time. In other words, the period during which a judicial officer should serve in an executive post must be settled by agreement between the High Court and the government. If there is no such agreement, it is open to the government to send him back to his parent department at any time it pleases. It is equally open to the High Court to recall him whenever it thinks fit. If only there is mutual understanding and appreciation of the difficulties of the one by the other, there will be harmony.There is no reason why there should be any conflict between the High Court and the government. Except for very good reasons we think the High Court should always be willing, to spare for an agreed period the services of any of the officers under its control for filling up such executive posts as may require the services of judicial officers.The government, in its turn should appreciate the anxiety of the High Court that judicial officers should not be allowed to acquire vested interest in the secretariat. Both the High Court and the government should not forget the fact that powers are conferred on them for the good of the public and they should act in such a way as to advance public interest. If they act with that purpose in view as they should, then there is no room for conflict and no question of one dominating the other arises. Each of the organs of the State has a special role of its own. But our constitution expects all of them to work in harmony in a spirit of service.As Shri K. K. Bose and Shri B. K. Patro had not been placed at the disposal of the government for any definite period, it was open to the High Court to recall them and post them as presiding officers of district courts. Hence, the High Court was within its powers in posting Shri B. K. Patro as district and sessions judge of Ganjam-Boudh division, Shri K. K. Bose as district and sessions judge of Mayurbhanj-Keonjhar division, and Shri P. C. Dey, as district and sessions judge of. Bolangir-Kalahandi division though it would have been graceful if it had effected those transfers after reasonable notice to the government. But it was beyond the powers of the High Court to post Shri K. B. Panda as the law secretary Shri T. Misra as superintendent and legal remembrancer and Shri P. K. Mohanti a. the deputy law secretary. That part of the High Courts order is clearly unsustainable.But as mentioned earlier, the government has already implemented that part of the order as well. Those officers are now functioning in the posts to which they were transferred. The learned Attorney-General told us that the government has no objection to those officers continuing in those posts for the present. We are sure if any change is required the same will be effected by mutual understanding between the High Court and the government.
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M. S. Anirudhan Vs. The Thomco'S Bank Ltd | possible prejudice any one, destroys the validity of the note. It seems to us repugnant to justice and common sense to hold that the maker of a promissory note is discharged from his obligation to pay it because the holder has put in writing on the note what the law would have supplied if the words had not been written. 32. What is said here about an addition or alteration of a promissory note was prior to the enactment of the rule in Bills of Exchange Act in England which has altered the law with regard to negotiable instruments but the observations apply forcefully to a document of the type we have where there were two executants (one being the debtor and the other his surety) and the debtor has not increased but reduced the amount of his own liability as well as that of his surety. That immaterial alterations do not matter is borne out by the observation of Swinfen Eady, J., in Bishop of Crediton v. Bishop of Exeter [1905] 2 Ch. 485, where Pigots case 11 CR 26; 77 E.R. 1177, and the earlier statement of the law in Shepards Touchstone, 7th ed. (Prestons), p. 55, were not accepted. During the course of the argument Swinfen Eady, J., referred to cases in which corrections in the testimonium of documents to accord them with existing facts were held not to be material alterations. The question before me is whether a document jointly executed by two person creating a liability equal for both is to be regarded as materially altered if the liability is reduced equally for both but the alteration is made only by one of them. In my opinion, such an alteration must be regarded as unsubstantial and not otherwise than beneficial to the surety and it cannot attract the strict rule stated by Lord Coke or that stated by Lord Westbury in the cited cases. 33. Let me give an example : If A places an order with a trader for supply on credit of ten bags of wheat and B endorsed the order by writing, I guarantee payment up to ten bags, can it be said that the guarantee by B is dissolved when A takes the note and finding that the tradesman has only six bags of wheat in stock, corrects his order as well as the endorsement by altering ten into six ? In my opinion, to such a correction neither the one rule nor the other can apply. The strict rule of law which was brought to our notice from the well-known Suffells Case (1882) 9 Q.B.D. 555, where a Bank of England note was mutilated and its number destroyed, dependend upon its special facts. The number of the Bank of England note was considered its vital part and the alteration a material alteration. Suffells Case (1882) 9 Q.B.D. 555 was not followed by the Privy Council in a case where a bank note issued by bank which was only a contract and not currency, as in other case, was destroyed because the owner had forgotten that the note was in the pocket of a garment and the garment had been washed. The note was reconstructed and showed the contract but not the number. The Privy Council held the bank liable even though the contract had been altered by eraser (see Hong Kong and Shanghai Banking Corporation v. Lo Lee Khi [1928] A.C. 181. 34. These cases establish that both the limbs of the argument which Anirudhan can raise are not valid in the circumstances of this case. In my judgment, the particular document in this case cannot be said to have been materially altered, because it has not been altered in such a manner as to change its nature. The alteration does not save the surety from liability arising under it. The alteration was made by a co-executant who reduced not only his own liability but that of the surety also. Indeed, the surety himself understood the law to be this because he set up the case that the document originally guaranteed an overdraft of Rs. 5,000/- but was altered to guarantee an overdraft of Rs. 20,000/-. This case has been proved false and he never set-up the case that the document was void because the amount was reduced from Rs. 25,000/- to Rs. 20,000/-. It does not lie in the mouth of Aniruthan to say that he meant to guarantee Rs. 25,000/- but not Rs. 20,000/- because he never went to the Bank and made this a condition of the agreement. Now he cannot say that the document has become void against him or that the contract which had emerged by the Banks acceptance of the document as altered does not bind him. 35. There is no need, in my opinion, to consider whether there was a prior oral agreement or not. I agree there is no proof of such an agreement. The letter of Anirudhan to the Bank was based on a consideration which had already moved to Sankaran and which Anirudhan wished to guarantee. Even if treated as an offer by Anirudhan to the Bank, the Bank accepted the amended offer and Sankaran must be deemed to have had, the authority to reduce the amount, though not to increase it. The document was altered while in the possession of the very person who, as the agent of Anirudhan, brought it to the Bank on both the occasions. Anirudhan must be deemed to have held out Sankaran as his agent for this purpose and this creates an estoppel against Anirudhan, because the Bank believed that Sankaran had the authority. The offer thus remains in its amended form an offer of Anirudhan to the Bank and the Bank by accepting it turned it into a contract of guarantee which was backed by the past consideration on which the offer of Anirudhan was originally based. 36. In my opinion, the appeal must fail. I would, therefore, dismiss it. 37. BY COURT: | 0[ds]The question then is, was the alteration in the letter of guarantee of the kind contemplated by this principle. The learned Judges of the High Court thought it was and so held that the letter of guarantee as altered could be enforced. I am unable to accede to that view12. It seems to me that the intention to carry out which an alteration is permissible under the rule on which the High Court has relied, is the intention with which the instrument was executed. That is why in formulating the rule it has been stated in Halsburys Laws of England that the intention has to be already apparent on the face of the deed14. Now there is absolutely no evidence in this case that in writing the letter of guarantee the appellant had intended to mention the maximum amount of guarantee as Rs. 20,000/and had by mistake written Rs. 25,000/instead. In holding that there was such a mistake, the High Court proceeded purely on the basis of conjecture which is evident from the language used by it. It said, probably defendant 2 (the appellant) made a mistake in Ext. C (the letter of guarantee). There was not the slightest warranty for this conjecture. In fact the evidence indicates that Rs. 25,000/had been mentioned intentionally in the letter of guarantee. That evidence was given by the Banks agents too. He said that the overdraft arrangement commenced on February 24, 1947, when Sankaran executed a promissory note for Rs. 20,000/in favour of the Bank. At that time the appellant was not available to sign the letter of guarantee. The letter was typed by the Bank with blank spaces left for entries to be made by the guarantor regarding the maximum limit of the account, the rate of interest and the date. Sankaran brought this letter back to the Bank in May 1947. At that time the space for the amount of the limit was filled up with the figure Rs.. Sankaran said that he required Rs. 25,000/and would renew the promissory note for that amount. The Bank was not prepared to advance to him more than Rs. 20,000/and so the letter of guarantee was returned to Sankaran who the took it away and brought it back some time later with the amount of the maximum limit corrected to Rs.. This is all the evidence on the question15. I think it right to point out here that the Banks agent did not speak to any oral agreement with the appellant, nor indeed to any interview with him concerning the overdraft arrangement or the guarantee. The appellant in his written statement no doubt admitted that he had agreed to guarantee the due repayment of the overdraft up to Rs.. He did not however say that the agreement was verbal but mentioned the letter of guarantee. The appellants admission can of course be taken against him but it must be taken as made and not a part of it only. Again, no verbal agreement concerning the guarantee had been pleaded anywhere by the Bank, not even in the application that it filed in answer to the written statement of the appellant alleging that the letter of guarantee having been materially altered no suit lay on it. Lastly, I have to observe that the trial court did not find that any such oral agreement had been made. If there had been any agreement, the letter of guarantee as typed out would have contained no blanks16. In these circumstances it is impossible to hold that there was any prior agreement about the guarantee or its limit, between the appellant and the Bank, and if there was not, the High Courts view that in the letter of guarantee Rs. 25,000/had been mentioned by mistake, would lose its foundation. But even assuming aand in this case the agreement, if any, could only be verbalthe fact that Sankaran made a request that the amount of the overdraft should be increased to Rs. 25,000/would rather indicate that the letter of guarantee had intentionally stated Rs. 25,000/as the amount of guarantee and this figure had not been written by any mistake. It would be impossible to hold on this evidence that there had been any mistake in writing the letter of guarantee. The evidence does not prove anyg agreement and tends to prove that there had been no mistake in writing the letter of guarantee even if there was an agreement. Therefore it seems to me that the High Court was in error in thinking that the alteration in this case had been made to carry out the intention of the parties. The principle underlying s. 87 of the Negotiable Instruments Act has no application to the facts of this case18. I do not think that this contention assists the Bank at all. I will assume that an alteration in an instrument which is not to the prejudice of a party to it is not a material alteration and does not release him from his liability under the instrument. This rule however does not make the instrument as altered binding on that party. If it did, that would amount to changing by unilateral action the terms of a contract made by common consent or to changing the terms of an offer made by one without his consent. As I have earlier said, none of these things can be done under our law. I may add that I have not been able to find any authority laying down that in such a case the altered instrument would be binding19. All that we would get in this case if Dr. Seiyid Muhammed is right, is that the alteration might be ignored and, the instrument in its original form might be considered as existing unaffected by the alteration. In present case, therefore, we would have a letter of guarantee written by the appellant undertaking to repay the balance due by Sankaran on the overdraft account up to a limit of Rs.. When then ? The suit is not on a contract to guarantee up to Rs.. Indeed according to the Banks pleading and evidence there never was any agreement for such a guarantee between it and the appellant. The letter, therefore cannot be considered as evidence of such a contract. Further that evidence to which I have already referred proves that as an offer, the letter was not accepted by the Bank. In fact the letter in its original form is of no assistance to the Bank at all in this case, it neither proves a guarantee for Rs. 25,000/nor for Rs. 20,000/20. But it is said that the letter contained an enforceable contract as it was supported by consideration which had already moved from the Bank, namely, the advance to Sankaran before the date of the letter and the promise to make further advances. Then it is said that inadequacy of consideration does not avoid a contract as stated in Explanation 2 of s. 25 of the Contract Act, 1872, and therefore the Banks undertaking to advance upto Rs. 20,000/could support the appellants promise to guarantee up to Rs.. But it is not the Banks case that there was such a contract of guarantee. Its case was that the contract of guarantee was for Rs.. That contract is not supported by the letter of which alone the suit is based. If there was no contract as stated in the letter then no question of consideration to support it can possibly arise. Therefore it seems to me that the contention that the alteration was immaterial and did not affect the instrument so far as the appellant is concerned is to no purpose in the present case21. The position may then be thus stated. We have a suit against the appellant based on a written contract to guarantee repayment of Sankarans dues to the Bank up to Rs.. There is no evidence of any verbal contract of guarantee. The appellant wrote a letter guaranteeing repayment of those dues up to Rs.. Sankaran also signed this letter but that signature is of no consequence to the question of guarantee which alone arises in this appeal for Sankaran could not guarantee his own debt and his signature would therefore only be evidence of his liability for the amount advanced to him by way of overdraft. Such liability, however, he had already undertaken by executing a promissory note for Rs. 20,000/in favour of the Bank. His signature on the letter of guarantee therefore made no difference in the legal relations that have to be considered in this appeal. Returning now to the letter of guarantee written by the appellant, the Bank refused to accept that letter and, therefore, on the Banks own case no contract on its terms was ever made. That letter was altered without the consent of the appellant probably by Sankaran by substituting Rs. 20,000/. If the alteration was without the appellants consent, it could not have been authorised by him; if it had been, consent would be implied. There is further neither evidence, nor pleading nor finding of any such authority. The altered document is not binding on the appellant for the alteration had not been made to carry out the intention of the parties. If the alteration is ignored, then the document creates no liability in the appellant, for the Bank refused to accept a guarantee on the terms contained in the document before it was altered. Further, the contract sued upon is different from the contract which might have been made by the document as it stood before the alteration. The unaltered document cannot establish the contract sued upon22. The conclusion to which I arrive then is that the suit against the appellant as framed must fail. I would, therefore, allow the appeal with costs here and below and dismiss the suit against the appellant23. I have had the advantage of reading the judgment prepared by my brother Sarkar. In my opinion, and I say it with great respect, this appeal must fail. I shall give my reasons brieflyIn my judgment, in the present case it cannot be said. The document still continues to represent what was intended by Anirudhan. That intention was to guarantee a loan up to Rs. 25,000/which includes the sum for Rs. 20,000/for which the guarantee now stands27. There are really two defences open to Anirudhan the surety. The first is that he had offered to stand surety on certain terms and as those conditions have been altered he is discharged from any liability. The second also depends on the alteration and it is that a document executed by him has been materially altered and is therefore void. This is a plea of non est factum. Both the arguments rest upon the alteration of the contract into which Anirudhan wished to enter. A surety is considered a favoured debtor and his liability is strictissimi jurisIn my opinion, such an alteration must be regarded as unsubstantial and not otherwise than beneficial to the surety and it cannot attract the strict rule stated by Lord Coke or that stated by Lord Westbury in the cited cases33. Let me give an example : If A places an order with a trader for supply on credit of ten bags of wheat and B endorsed the order by writing, I guarantee payment up to ten bags, can it be said that the guarantee by B is dissolved when A takes the note and finding that the tradesman has only six bags of wheat in stock, corrects his order as well as the endorsement by altering ten into six ? In my opinion, to such a correction neither the one rule nor the other can apply. The strict rule of law which was brought to our notice from then Suffells Case (1882) 9 Q.B.D. 555, where a Bank of England note was mutilated and its number destroyed, dependend upon its special facts. The number of the Bank of England note was considered its vital part and the alteration a material alteration. Suffells Case (1882) 9 Q.B.D. 555 was not followed by the Privy Council in a case where a bank note issued by bank which was only a contract and not currency, as in other case, was destroyed because the owner had forgotten that the note was in the pocket of a garment and the garment had been washed. The note was reconstructed and showed the contract but not the number. The Privy Council held the bank liable even though the contract had been altered by eraser (see Hong Kong and Shanghai Banking Corporation v. Lo Lee Khi [1928] A.C. 18134. These cases establish that both the limbs of the argument which Anirudhan can raise are not valid in the circumstances of this case. In my judgment, the particular document in this case cannot be said to have been materially altered, because it has not been altered in such a manner as to change its nature. The alteration does not save the surety from liability arising under it. The alteration was made by at who reduced not only his own liability but that of the surety also. Indeed, the surety himself understood the law to be this because he set up the case that the document originally guaranteed an overdraft of Rs. 5,000/but was altered to guarantee an overdraft of Rs.. This case has been proved false and he neverp the case that the document was void because the amount was reduced from Rs. 25,000/. It does not lie in the mouth of Aniruthan to say that he meant to guarantee Rs. 25,000/but not Rs. 20,000/because he never went to the Bank and made this a condition of the agreement. Now he cannot say that the document has become void against him or that the contract which had emerged by the Banks acceptance of the document as altered does not bind him35. There is no need, in my opinion, to consider whether there was a prior oral agreement or not. I agree there is no proof of such an agreement. The letter of Anirudhan to the Bank was based on a consideration which had already moved to Sankaran and which Anirudhan wished to guarantee. Even if treated as an offer by Anirudhan to the Bank, the Bank accepted the amended offer and Sankaran must be deemed to have had, the authority to reduce the amount, though not to increase it. The document was altered while in the possession of the very person who, as the agent of Anirudhan, brought it to the Bank on both the occasions. Anirudhan must be deemed to have held out Sankaran as his agent for this purpose and this creates an estoppel against Anirudhan, because the Bank believed that Sankaran had the authority. The offer thus remains in its amended form an offer of Anirudhan to the Bank and the Bank by accepting it turned it into a contract of guarantee which was backed by the past consideration on which the offer of Anirudhan was originally based36. In my opinion, the appeal must fail. 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possible prejudice any one, destroys the validity of the note. It seems to us repugnant to justice and common sense to hold that the maker of a promissory note is discharged from his obligation to pay it because the holder has put in writing on the note what the law would have supplied if the words had not been written. 32. What is said here about an addition or alteration of a promissory note was prior to the enactment of the rule in Bills of Exchange Act in England which has altered the law with regard to negotiable instruments but the observations apply forcefully to a document of the type we have where there were two executants (one being the debtor and the other his surety) and the debtor has not increased but reduced the amount of his own liability as well as that of his surety. That immaterial alterations do not matter is borne out by the observation of Swinfen Eady, J., in Bishop of Crediton v. Bishop of Exeter [1905] 2 Ch. 485, where Pigots case 11 CR 26; 77 E.R. 1177, and the earlier statement of the law in Shepards Touchstone, 7th ed. (Prestons), p. 55, were not accepted. During the course of the argument Swinfen Eady, J., referred to cases in which corrections in the testimonium of documents to accord them with existing facts were held not to be material alterations. The question before me is whether a document jointly executed by two person creating a liability equal for both is to be regarded as materially altered if the liability is reduced equally for both but the alteration is made only by one of them. In my opinion, such an alteration must be regarded as unsubstantial and not otherwise than beneficial to the surety and it cannot attract the strict rule stated by Lord Coke or that stated by Lord Westbury in the cited cases. 33. Let me give an example : If A places an order with a trader for supply on credit of ten bags of wheat and B endorsed the order by writing, I guarantee payment up to ten bags, can it be said that the guarantee by B is dissolved when A takes the note and finding that the tradesman has only six bags of wheat in stock, corrects his order as well as the endorsement by altering ten into six ? In my opinion, to such a correction neither the one rule nor the other can apply. The strict rule of law which was brought to our notice from the well-known Suffells Case (1882) 9 Q.B.D. 555, where a Bank of England note was mutilated and its number destroyed, dependend upon its special facts. The number of the Bank of England note was considered its vital part and the alteration a material alteration. Suffells Case (1882) 9 Q.B.D. 555 was not followed by the Privy Council in a case where a bank note issued by bank which was only a contract and not currency, as in other case, was destroyed because the owner had forgotten that the note was in the pocket of a garment and the garment had been washed. The note was reconstructed and showed the contract but not the number. The Privy Council held the bank liable even though the contract had been altered by eraser (see Hong Kong and Shanghai Banking Corporation v. Lo Lee Khi [1928] A.C. 181. 34. These cases establish that both the limbs of the argument which Anirudhan can raise are not valid in the circumstances of this case. In my judgment, the particular document in this case cannot be said to have been materially altered, because it has not been altered in such a manner as to change its nature. The alteration does not save the surety from liability arising under it. The alteration was made by a co-executant who reduced not only his own liability but that of the surety also. Indeed, the surety himself understood the law to be this because he set up the case that the document originally guaranteed an overdraft of Rs. 5,000/- but was altered to guarantee an overdraft of Rs. 20,000/-. This case has been proved false and he never set-up the case that the document was void because the amount was reduced from Rs. 25,000/- to Rs. 20,000/-. It does not lie in the mouth of Aniruthan to say that he meant to guarantee Rs. 25,000/- but not Rs. 20,000/- because he never went to the Bank and made this a condition of the agreement. Now he cannot say that the document has become void against him or that the contract which had emerged by the Banks acceptance of the document as altered does not bind him. 35. There is no need, in my opinion, to consider whether there was a prior oral agreement or not. I agree there is no proof of such an agreement. The letter of Anirudhan to the Bank was based on a consideration which had already moved to Sankaran and which Anirudhan wished to guarantee. Even if treated as an offer by Anirudhan to the Bank, the Bank accepted the amended offer and Sankaran must be deemed to have had, the authority to reduce the amount, though not to increase it. The document was altered while in the possession of the very person who, as the agent of Anirudhan, brought it to the Bank on both the occasions. Anirudhan must be deemed to have held out Sankaran as his agent for this purpose and this creates an estoppel against Anirudhan, because the Bank believed that Sankaran had the authority. The offer thus remains in its amended form an offer of Anirudhan to the Bank and the Bank by accepting it turned it into a contract of guarantee which was backed by the past consideration on which the offer of Anirudhan was originally based. 36. In my opinion, the appeal must fail. I would, therefore, dismiss it. 37. BY COURT:
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is not binding on the appellant for the alteration had not been made to carry out the intention of the parties. If the alteration is ignored, then the document creates no liability in the appellant, for the Bank refused to accept a guarantee on the terms contained in the document before it was altered. Further, the contract sued upon is different from the contract which might have been made by the document as it stood before the alteration. The unaltered document cannot establish the contract sued upon22. The conclusion to which I arrive then is that the suit against the appellant as framed must fail. I would, therefore, allow the appeal with costs here and below and dismiss the suit against the appellant23. I have had the advantage of reading the judgment prepared by my brother Sarkar. In my opinion, and I say it with great respect, this appeal must fail. I shall give my reasons brieflyIn my judgment, in the present case it cannot be said. The document still continues to represent what was intended by Anirudhan. That intention was to guarantee a loan up to Rs. 25,000/which includes the sum for Rs. 20,000/for which the guarantee now stands27. There are really two defences open to Anirudhan the surety. The first is that he had offered to stand surety on certain terms and as those conditions have been altered he is discharged from any liability. The second also depends on the alteration and it is that a document executed by him has been materially altered and is therefore void. This is a plea of non est factum. Both the arguments rest upon the alteration of the contract into which Anirudhan wished to enter. A surety is considered a favoured debtor and his liability is strictissimi jurisIn my opinion, such an alteration must be regarded as unsubstantial and not otherwise than beneficial to the surety and it cannot attract the strict rule stated by Lord Coke or that stated by Lord Westbury in the cited cases33. Let me give an example : If A places an order with a trader for supply on credit of ten bags of wheat and B endorsed the order by writing, I guarantee payment up to ten bags, can it be said that the guarantee by B is dissolved when A takes the note and finding that the tradesman has only six bags of wheat in stock, corrects his order as well as the endorsement by altering ten into six ? In my opinion, to such a correction neither the one rule nor the other can apply. The strict rule of law which was brought to our notice from then Suffells Case (1882) 9 Q.B.D. 555, where a Bank of England note was mutilated and its number destroyed, dependend upon its special facts. The number of the Bank of England note was considered its vital part and the alteration a material alteration. Suffells Case (1882) 9 Q.B.D. 555 was not followed by the Privy Council in a case where a bank note issued by bank which was only a contract and not currency, as in other case, was destroyed because the owner had forgotten that the note was in the pocket of a garment and the garment had been washed. The note was reconstructed and showed the contract but not the number. The Privy Council held the bank liable even though the contract had been altered by eraser (see Hong Kong and Shanghai Banking Corporation v. Lo Lee Khi [1928] A.C. 18134. These cases establish that both the limbs of the argument which Anirudhan can raise are not valid in the circumstances of this case. In my judgment, the particular document in this case cannot be said to have been materially altered, because it has not been altered in such a manner as to change its nature. The alteration does not save the surety from liability arising under it. The alteration was made by at who reduced not only his own liability but that of the surety also. Indeed, the surety himself understood the law to be this because he set up the case that the document originally guaranteed an overdraft of Rs. 5,000/but was altered to guarantee an overdraft of Rs.. This case has been proved false and he neverp the case that the document was void because the amount was reduced from Rs. 25,000/. It does not lie in the mouth of Aniruthan to say that he meant to guarantee Rs. 25,000/but not Rs. 20,000/because he never went to the Bank and made this a condition of the agreement. Now he cannot say that the document has become void against him or that the contract which had emerged by the Banks acceptance of the document as altered does not bind him35. There is no need, in my opinion, to consider whether there was a prior oral agreement or not. I agree there is no proof of such an agreement. The letter of Anirudhan to the Bank was based on a consideration which had already moved to Sankaran and which Anirudhan wished to guarantee. Even if treated as an offer by Anirudhan to the Bank, the Bank accepted the amended offer and Sankaran must be deemed to have had, the authority to reduce the amount, though not to increase it. The document was altered while in the possession of the very person who, as the agent of Anirudhan, brought it to the Bank on both the occasions. Anirudhan must be deemed to have held out Sankaran as his agent for this purpose and this creates an estoppel against Anirudhan, because the Bank believed that Sankaran had the authority. The offer thus remains in its amended form an offer of Anirudhan to the Bank and the Bank by accepting it turned it into a contract of guarantee which was backed by the past consideration on which the offer of Anirudhan was originally based36. In my opinion, the appeal must fail. I would, therefore, dismiss it.
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State of Kerala and Others Vs. Travancore Chemicals and Manufacturing Company and Another | entry under which sale of particular goods are to be taxed can be raised and determined before various quasi-judicial and judicial authorities. There is a right of appeal and revision which is given to a person who is aggrieved by any order. 11. A plain reading of Section 59-A shows that if any question relating to the rate of tax leviable under the Act on any goods is referred to the Government then its decision thereon, "notwithstanding any other provision in this Act is final". This section does not indicate as to who can make a reference to the Government. There is no obligation on the Government to hear any dealer before it decides as to the rate of tax leviable on the sales or purchase of any type of goods. In fact, as we have noticed earlier, by an omnibus order dated 23-4-1984, the Government decided rates of tax payable in respect of various items without any opportunity of being heard having been granted to any of the dealers. Lastly, Section 59-A clearly states that the decision so given by the Government shall be final and would have an overriding effect. 12. There is no warrant in our opinion in trying to read down the provisions of Section 59-A. The words of the said provision are clear and unambiguous. The said section gives absolute power to the Government to decide any question regarding the rate of tax leviable on the sale or purchase of goods in any manner it deems proper and finality is given to such a decision. 13. Section 59-A enables the Government to pass an administrative order which has the effect of negating the statutory provisions of appeal, revision etc. contained in Chapter VII of the Act which would have enabled the appellate or revisional authority to decide upon questions in relation to which an order under Section 59-A is passed. Quasi-judicial or judicial determination stands replaced by the power to take an administrative decision. There is nothing in Section 59-A which debars the Government from exercising the power even after a dealer has succeeded on a question relating to the rate of tax before an appellate authority. The power under Section 59-A is so wide and unbridled that it can be exercised at any time and the decision so rendered shall be final. It may well be that the effect of this would be that such a decision may even attempt to override the appellate or the revisional power exercised by the High Court under Section 40 of the Act as the case may be. The section enables passing of an executive order which has the effect of subverting the scheme of a quasi-judicial and judicial resolution of the lis between the State and the dealer. 14. We are unable to agree with the submission of Mr. Bhat that the section furnishes a limitation subject to which the power can be exercised. The section does not contain and guidelines as to at what stage the power can be exercised and nor does the exercise of such a power make it amenable to the appellate or revisional provisions provided by the Act. It is no doubt true that in certain enactments of other States, the Government has the power but such power is not unbridled. For example, under Section 49 of the Delhi Sales Tax Act, 1975, power has been given to the Commissioner of Sales Tax to determine certain disputed questions. The said section reads as under. "49. Determination of disputed questions. - (1) If any question arises, otherwise than an proceedings before a court, or before the Commissioner has commenced assessment or reassessment of a dealer under Section 23 or Section 24 whether for the purposes of this Act, -(a) any person, society, club or association or any firm or any branch or department of any firm is a dealer; or(b) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term as given in clause (h) of Section 2; or(c) any transaction is a sale, and if so, the sale price therefor; or(d) any particular dealer is required to be registered; or(e) any tax is payable in respect of any particular sale, or if the tax is payable, the rate thereofthe Commissioner shall, within such period as may be prescribed, make an order determining such questionExplanation. - For the purposes of this sub-section, the Commissioner shall be deemed to have commenced assessment or reassessment of a dealer under Section 23 or Section 24, when the dealer is served with any notice by the Commissioner under Section 23 or Section 24, as the case may be(2) The Commissioner may direct that the determination shall not affect the liability of any person under this Act as respects any sale effected prior to the determination(3) If any such question arises from any order already passed under this Act or under the Bengal Finance (Sales Tax) Act, 1941, Bengal Act VI of 1941, as then in force in Delhi, no such question shall be entertained for determination under this section; but such question may be raised in appeal against, or by way of revision of such order." The aforesaid section itself provides that a question for determination must arise otherwise than in proceedings before a court or before the Commissioner has commenced assessment or reassessment. Furthermore, sub-section (2) enables the Commissioner to direct that the determination of the question shall not affect the liability of any person under that Act in respect of any sale effected prior to the determination. No such safeguard or guideline as provided in the said Section 49 of the Delhi Sales Tax Act is present in the main provision. 15. We are in complete agreement with the view of the Kerala High Court that Section 59-A of the Act is violative of Article 14 of the Constitution and the High Court was, therefore, right in striking down the said provision. 16. | 0[ds]11. A plain reading of Section 59-A shows that if any question relating to the rate of tax leviable under the Act on any goods is referred to the Government then its decision thereon, "notwithstanding any other provision in this Act is final". This section does not indicate as to who can make a reference to the Government. There is no obligation on the Government to hear any dealer before it decides as to the rate of tax leviable on the sales or purchase of any type of goods. In fact, as we have noticed earlier, by an omnibus order dated 23-4-1984, the Government decided rates of tax payable in respect of various items without any opportunity of being heard having been granted to any of the dealers. Lastly, Section 59-A clearly states that the decision so given by the Government shall be final and would have an overridingSection 59-A enables the Government to pass an administrative order which has the effect of negating the statutory provisions of appeal, revision etc. contained in Chapter VII of the Act which would have enabled the appellate or revisional authority to decide upon questions in relation to which an order under Section 59-A is passed. Quasi-judicial or judicial determination stands replaced by the power to take an administrative decision. There is nothing in Section 59-A which debars the Government from exercising the power even after a dealer has succeeded on a question relating to the rate of tax before an appellate authority. The power under Section 59-A is so wide and unbridled that it can be exercised at any time and the decision so rendered shall be final. It may well be that the effect of this would be that such a decision may even attempt to override the appellate or the revisional power exercised by the High Court under Section 40 of the Act as the case may be. The section enables passing of an executive order which has the effect of subverting the scheme of a quasi-judicial and judicial resolution of the lis between the State and theWe are unable to agree with the submission of Mr. Bhat that the section furnishes a limitation subject to which the power can be exercised. The section does not contain and guidelines as to at what stage the power can be exercised and nor does the exercise of such a power make it amenable to the appellate or revisional provisions provided by the Act. It is no doubt true that in certain enactments of other States, the Government has the power but such power is notaforesaid section itself provides that a question for determination must arise otherwise than in proceedings before a court or before the Commissioner has commenced assessment or reassessment. Furthermore, sub-section (2) enables the Commissioner to direct that the determination of the question shall not affect the liability of any person under that Act in respect of any sale effected prior to the determination. No such safeguard or guideline as provided in the said Section 49 of the Delhi Sales Tax Act is present in the mainWe are in complete agreement with the view of the Kerala High Court that Section 59-A of the Act is violative of Article 14 of the Constitution and the High Court was, therefore, right in striking down the said provision. | 0 | 2,478 | 589 | ### Instruction:
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entry under which sale of particular goods are to be taxed can be raised and determined before various quasi-judicial and judicial authorities. There is a right of appeal and revision which is given to a person who is aggrieved by any order. 11. A plain reading of Section 59-A shows that if any question relating to the rate of tax leviable under the Act on any goods is referred to the Government then its decision thereon, "notwithstanding any other provision in this Act is final". This section does not indicate as to who can make a reference to the Government. There is no obligation on the Government to hear any dealer before it decides as to the rate of tax leviable on the sales or purchase of any type of goods. In fact, as we have noticed earlier, by an omnibus order dated 23-4-1984, the Government decided rates of tax payable in respect of various items without any opportunity of being heard having been granted to any of the dealers. Lastly, Section 59-A clearly states that the decision so given by the Government shall be final and would have an overriding effect. 12. There is no warrant in our opinion in trying to read down the provisions of Section 59-A. The words of the said provision are clear and unambiguous. The said section gives absolute power to the Government to decide any question regarding the rate of tax leviable on the sale or purchase of goods in any manner it deems proper and finality is given to such a decision. 13. Section 59-A enables the Government to pass an administrative order which has the effect of negating the statutory provisions of appeal, revision etc. contained in Chapter VII of the Act which would have enabled the appellate or revisional authority to decide upon questions in relation to which an order under Section 59-A is passed. Quasi-judicial or judicial determination stands replaced by the power to take an administrative decision. There is nothing in Section 59-A which debars the Government from exercising the power even after a dealer has succeeded on a question relating to the rate of tax before an appellate authority. The power under Section 59-A is so wide and unbridled that it can be exercised at any time and the decision so rendered shall be final. It may well be that the effect of this would be that such a decision may even attempt to override the appellate or the revisional power exercised by the High Court under Section 40 of the Act as the case may be. The section enables passing of an executive order which has the effect of subverting the scheme of a quasi-judicial and judicial resolution of the lis between the State and the dealer. 14. We are unable to agree with the submission of Mr. Bhat that the section furnishes a limitation subject to which the power can be exercised. The section does not contain and guidelines as to at what stage the power can be exercised and nor does the exercise of such a power make it amenable to the appellate or revisional provisions provided by the Act. It is no doubt true that in certain enactments of other States, the Government has the power but such power is not unbridled. For example, under Section 49 of the Delhi Sales Tax Act, 1975, power has been given to the Commissioner of Sales Tax to determine certain disputed questions. The said section reads as under. "49. Determination of disputed questions. - (1) If any question arises, otherwise than an proceedings before a court, or before the Commissioner has commenced assessment or reassessment of a dealer under Section 23 or Section 24 whether for the purposes of this Act, -(a) any person, society, club or association or any firm or any branch or department of any firm is a dealer; or(b) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term as given in clause (h) of Section 2; or(c) any transaction is a sale, and if so, the sale price therefor; or(d) any particular dealer is required to be registered; or(e) any tax is payable in respect of any particular sale, or if the tax is payable, the rate thereofthe Commissioner shall, within such period as may be prescribed, make an order determining such questionExplanation. - For the purposes of this sub-section, the Commissioner shall be deemed to have commenced assessment or reassessment of a dealer under Section 23 or Section 24, when the dealer is served with any notice by the Commissioner under Section 23 or Section 24, as the case may be(2) The Commissioner may direct that the determination shall not affect the liability of any person under this Act as respects any sale effected prior to the determination(3) If any such question arises from any order already passed under this Act or under the Bengal Finance (Sales Tax) Act, 1941, Bengal Act VI of 1941, as then in force in Delhi, no such question shall be entertained for determination under this section; but such question may be raised in appeal against, or by way of revision of such order." The aforesaid section itself provides that a question for determination must arise otherwise than in proceedings before a court or before the Commissioner has commenced assessment or reassessment. Furthermore, sub-section (2) enables the Commissioner to direct that the determination of the question shall not affect the liability of any person under that Act in respect of any sale effected prior to the determination. No such safeguard or guideline as provided in the said Section 49 of the Delhi Sales Tax Act is present in the main provision. 15. We are in complete agreement with the view of the Kerala High Court that Section 59-A of the Act is violative of Article 14 of the Constitution and the High Court was, therefore, right in striking down the said provision. 16.
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11. A plain reading of Section 59-A shows that if any question relating to the rate of tax leviable under the Act on any goods is referred to the Government then its decision thereon, "notwithstanding any other provision in this Act is final". This section does not indicate as to who can make a reference to the Government. There is no obligation on the Government to hear any dealer before it decides as to the rate of tax leviable on the sales or purchase of any type of goods. In fact, as we have noticed earlier, by an omnibus order dated 23-4-1984, the Government decided rates of tax payable in respect of various items without any opportunity of being heard having been granted to any of the dealers. Lastly, Section 59-A clearly states that the decision so given by the Government shall be final and would have an overridingSection 59-A enables the Government to pass an administrative order which has the effect of negating the statutory provisions of appeal, revision etc. contained in Chapter VII of the Act which would have enabled the appellate or revisional authority to decide upon questions in relation to which an order under Section 59-A is passed. Quasi-judicial or judicial determination stands replaced by the power to take an administrative decision. There is nothing in Section 59-A which debars the Government from exercising the power even after a dealer has succeeded on a question relating to the rate of tax before an appellate authority. The power under Section 59-A is so wide and unbridled that it can be exercised at any time and the decision so rendered shall be final. It may well be that the effect of this would be that such a decision may even attempt to override the appellate or the revisional power exercised by the High Court under Section 40 of the Act as the case may be. The section enables passing of an executive order which has the effect of subverting the scheme of a quasi-judicial and judicial resolution of the lis between the State and theWe are unable to agree with the submission of Mr. Bhat that the section furnishes a limitation subject to which the power can be exercised. The section does not contain and guidelines as to at what stage the power can be exercised and nor does the exercise of such a power make it amenable to the appellate or revisional provisions provided by the Act. It is no doubt true that in certain enactments of other States, the Government has the power but such power is notaforesaid section itself provides that a question for determination must arise otherwise than in proceedings before a court or before the Commissioner has commenced assessment or reassessment. Furthermore, sub-section (2) enables the Commissioner to direct that the determination of the question shall not affect the liability of any person under that Act in respect of any sale effected prior to the determination. No such safeguard or guideline as provided in the said Section 49 of the Delhi Sales Tax Act is present in the mainWe are in complete agreement with the view of the Kerala High Court that Section 59-A of the Act is violative of Article 14 of the Constitution and the High Court was, therefore, right in striking down the said provision.
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The Premier Automobiles Limited Vs. Kamlakar Shantaram Wadke | the first appeal out of which this appeal arises, some more points were raised which are not specifically raised before us. One of the points whether the present suits is one for specific performance was faintly argued before us and the discussion made by us above would clearly show that there is no attempt on the part of the plaintiffs to claim specific performance of any particular contract. There is merely an attempt to prevent the employer from enforcing a particular settlement or contract. Besides the question whether the suit is one for specific performance, it was argued at considerable length before the learned single Judge that the payments contemplated under the incentive scheme are either bonus or payment in the nature of bonus and, therefore, covered by the provisions of the Bonus Act. The other point that was canvassed before the learned single Judge was that the workers who are neither members of the engineering Mazdoor Sabha or of the Association of Engineering Workers have no particular contract in their favour and could not have jointed the present plaintiff under the provisions of o. I. R. 8, Civil Procedure Code and no adjudication could be made in their behalf by resorting to the procedure laid down in O. I. R. 8. It is needless to point out that it has been held by the trial court as well as by the first appellant Court that the manner in which payments are made from year after year from 1966 till 1971 itself constitutes a contract and such a contract exists between all workmen, whether members of a particular union or not, and defendant No. 1-company. The third point that was canvassed was that the injunction that is granted by the trial Court is purely a temporary injunction and temporary injunction cannot form the subject-matter of the decree. All these contentions have been negatived by the first appellate Court and we need not consider them for the simple reason that none of them has been argued before us. (18) THE only other point that was pressed before us was that the injunction granted by the trial court would not fall under any specific provision of the Specific Relief Act, 1963. We do not see much substance in this argument. The Courts jurisdiction to grant injunctions is covered by the provisions of that Act. The provisions of S. 38 (1) or clause (d) of Sub-s. (3) could be properly invoked in the circumstances of the present case. The discussion made by us earlier in this judgment would show that the recurring claims and recurring breaches could not be sufficiently dealt with by the Industrial Disputes Act. An injunction of the type granted by the trial Court in this case would undoubtedly prevent a multiplicity of judicial proceedings which may have to be resorted to unless the implementation of the settlement of 1971 is prevented. It could not be said in this case that there is no contract at all between the employer and the employees who are being paid for years together. The attempt on the part of the employer-defendant No. 1 to enforce a new contract without the consent of the plaintiffs and other similarly circumstanced would amount to breach of the existing contract. Nobody suggest that the terms and conditions of service could not be changed by ushering in a new contract, settlement or award. The grievance of the plaintiffs is that without resorting to the procedure provided by the Act, a direct interference with the existing terms and conditions of service is resorted to by defendant No. 1, the appellant. We are, therefore, of the opinion that under the provisions of S. 38 (1) and clause (d) of Sub-s. (3) of that section it would be appropriate to grant the kind of injunction which has been granted in this case. (19) WE may incidentally note that there are cross-objections filed by respondents Nos. 1 and 2 original plaintiffs. Those cross-objections relate to certain observations which appear in the judgment of the learned single Judge. While dealing with the settlement of 1971 the learned single Judge observes that if the agreement dated January 9, 1971 could be styled as a "settlement," it would have the binding effect on all workmen who are not only members of defendant No. 2 union but other workmen as well who are not only members of defendant No. 2 union but other workmen as well who are not members of defendant No. 2 union. In fact the settlement is with defendant No. 2 union of which the plaintiffs are not the members and there are many others who are also not members of that union. This is only an incidental observation and could not legitimately form the subject-matter of cross-objections. However, Mr. Damania for the respondents-plaintiffs expressed apprehension that these observations might be used against him in some manner. When we looked at the provisions of the Act, we found that a proviso is now introduced after Sub-s. (1) of S. 18 by Maharashtra Amending Act No. 1 of 1972. The effect of the proviso is that when a settlement which is not arrived in the course of conciliation proceedings takes place with a recognised union under Sub-s. (1) of S. 18, it is now made binding not only upon the members of that union but also upon persons referred to in cls. (c) and (d) of Sub-s. (3) of S. 18. It is our surmise that perhaps these provisions were present in the mind of the learned single Judge when generalisation was made by him about the binding effect of the settlement. However, so far as the facts of this case are concerned, the proviso is not at all attracted and its provisions are not applicable to settlements either of 1966 or 1971. The learned single Judges observations are merely incidental, perhaps based upon amended provisions of S. 18 and would, therefore, have no binding effect at all on either party to this litigation. | 0[ds]It is really not necessary to reiterate the position of law which is almost settled that all disputes of a civil nature must ultimately come before a civil Court for decision. The jurisdiction of the civil Court in respect of all civil matters is clearly stated in S. 9 of the Civil Procedure Code. If one wants to assert that that jurisdiction is taken away; it would be for him to so allege and prove it. The position of law in regard to jurisdiction of civil Courts has been unmistakably stated by the supreme Court in Abdul v. Bhawani, A. I. R. 1966 S. C. 1718. Not only it is for the party to allege want of jurisdiction and to prove it, but it is equally well settled that the statute ousting the jurisdiction of the civil Court must be strictly construed. The ouster of the civil Court could be either express or implied. Even when the jurisdiction is ousted in an express manner, it has been held that an examination of the scheme of the Act, the remedies it provides and the adequacy thereof as compared with the normal reliefs which could be claimed in a civil Court thus becomes relevant if not decisive. There have been recently several pronouncements of the supreme Court dealing with this subject and the learned single Judge, who disposed of the appeal, has referred to some of them. However, we find that the Supreme Court has dealt with the relevant decisions on the subject in Dhulabhai v. State of M. P. , A. I. R. 1966 S. C. 78, and has also summarised in its own way the result that follow from the survey of the case law in the filed. In Dhulabhais case after examining the various cases on the subject the then learned Chief justice of the Supreme Court speaking for the Court summarised his conclusions as follows (p. 89) :" (1) Where the statute gives a finality to the orders of the special tribunals the civil Court jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provision of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or a liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before the tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, as suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant inquiry. (7) An exclusion of the jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply. "(7) IN view of the position of law in regard to jurisdiction of civil Courts that now prevails and so clearly been expounded by the Supreme Court, it would be necessary for us to examine the provisions of the Industrial Disputes Act, 1947 and decide whether the jurisdiction of the civil court in all or some matters and more particularly in respect of the type of relief which is theof the present suit, has been ousted. It is not argued before us, nor does it seem to be possible to argue, that the Industrial Disputes Act, 1947 expressly bars the jurisdiction of the civil Courts. The case would naturally fall under the implied ouster of jurisdiction. It is, therefore, relevant to examine the remedies and the scheme of the particular Act to find out the intendment and such examination might lead to a result which would be decisive. When an examination of this type is being done, it becomes necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted and whether remedies normally associated with action in civil Courts are prescribed by the said statute or not. When the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") are so examined, we have to bear in mind the type of suit we are dealing with and the kind of remedy that is being asked for. Undoubtedly, this is merely a suit for injunction. A declaration was also sought for, but the trial Court found that looking to the words in which the declaration has been couched, it could not be and need not be granted. The trial court, therefore, merely proceeded to decide the right of the parties and on the conclusions reached, it has held that in the circumstances of the case a relief of injunction in a limited manner, though perpetual, is desirable and must be awarded. Though the objection raised on behalf of theNo. 1 is primarily to the jurisdiction of the civil Court, it is also a second limb of its argument that in the facts and circumstances of the case the plaintiffs have not made out a proper case for awarding them discretionary relief by the civil Court. It is not necessary for us to examine in any greater detail the facts which have been held proved by the two Courts, because we find that on the face of the record the plaintiffs have been able to make out a sufficiently convincing case. Since we find that this is a shorter point, we might dispose it of before the main question of jurisdiction is considered. [his Lordship after considering the evidence on the point,THE only impression one gets from the substantive provisions of the revised scheme which are directly injurious to the interests of the workers and are partly against statutory provisions of the act is that this must be a very suspicious affair between defendant No.and defendant no. 2 union. And that is the finding given by the trial Court and we are satisfied that on evidence and the circumstances of this case that is the proper finding. . . . If at all, therefore, the civil Court has any jurisdiction to entertain civil disputes, this case seems to us to be preeminently a fit case where that jurisdiction must be exercised in favour of the plaintiffs and against the defendants from enforcing the newargument in short is that the pith and substance must be borne in mind and when this is done, it would be apparent that the Legislature has provided an entirely separate machinery under the Act which enables a worker to obtain appropriate reliefs. Not only various tribunals provided by this Act are in a position to grant all the reliefs that a worker might claim but even the remedies provided in the sections referred to above are quite adequate and sufficient. When this argument is examined closely, we find that it is difficult to give any countenance to it. The scheme of the Act certainly shows that no express bar to the jurisdiction of the civil Court has been enacted in Chapter II. Chapter II provides the various authorities under the Act and in Chapter IIA the Act provides for a notice of change. If any service conditions are intended to be changed in respect of matters specified in the Fourth Schedule, it is not permissible to do so unless a notice of change contemplated by S. 9a has been given. It is not necessary to refer at this stage to the Governments power to exempt an employer under S. 9b from giving such a notice. Chapter III refers to the Boards, Courts and Tribunals to which the government may in its discretion refer an industrial dispute. Chapter IV provides for the procedure, powers and duties of the various authorities under the Act. Chapter V contains provisions in regard to strikes and lockouts. Chaptercontains provisions in regard toand retrenchment. Under Chapter VI various penalties have been provided for. Chapter VII contains miscellaneous provisions which include remedies like recovery of money due from an employer by an employee. Them follow the various Schedules. This in short is the scheme of the act.(11) IT would be appropriate now to examine whether S. 10 is capable of giving a workman all the remedies which are normally available in a Court of law and also making available all the reliefs which are claimable before a civil Court. Section 10 (1) in the first instance deals with an industrial dispute as defined by S. 2 (k). It is a dispute, in the context of the present case, between an employer on the one hand and the workmen on the other. In other words, a dispute which is collective in its form and essence is contemplated to be dealt with by S. 10. Section 10, at any rate, is not the provisions for catering to the needs of individual workers who have their individual rights to assert and enforce. This position would be amply clear from the provisions of s. 2a which provides an exception to S. 2 and by which an individual workman is given an individual right to raise an industrial dispute. Thecovered by S. 2a confines itself to the discharge, dismissal, retrenchment or otherwise termination of service of an individual worker. Short of this subject which is provided for by S. 2a any other industrial dispute must be a collective dispute and an attempt to enforce individual rights would not be covered by the expression "industrial dispute" as used in the Act. The appropriate Government must be first moved and the appropriate Government will pass an order in writing referring the dispute to the appropriate tribunal in case it is of the "opinion" that an "industrial dispute exists". The language of this section is plain and it contemplates subjective satisfaction of the appropriate Government and gives an unfettered discretion to it either to refer or to refuse to refer any dispute to any of the tribunals under the Act. It may further be noted that there is no procedure provided anywhere in the Act to challenge the opinion of the State Government which, in the circumstance, would be final and conclusive. Mr. Vimadalal argued before us that it has usually been the policy of the state Government, particularly in the interest of industrial peace, to refer all such disputes to the appropriate tribunals. When the question for examination is whether the Act provides for adequate remedies, the behaviour of the State Government from time to time would hardly be of any relevance. What we find is that if the formation of opinion goes against the workers and they are unable to say that the conclusion is either perverse or mala fide, they are left with no remedy of any kind to challenge that opinion. If that were so, it is difficult to say that the approach to the state Government under S. 10 is either adequate or sufficient remedy for the decision of the rights of workmen. In other words, there is no element of compulsion requiring the State government to refer every dispute raised by the workmen either individually or collectively to an appropriate tribunal under thewill at once point out that the reasons for which conciliation proceedings were not undertaken were obviously irrelevant and beside the point. The Supreme Court pointed out that the refusal by the government to make a reference must be based upon reasons which are germane to the question under consideration and they must not be extraneous. It is also pointed out by the Supreme Court that in a fit case where the decision is based on extraneous consideration, it would be open for the Supreme Court to issue a writ of mandamus but in that particular case pointed out that it would prefer to remand the matter for reconsideration in the light of its observations. It is the intention of the Legislature that where decisions under Ss. 10 and 12 are not either mala fide or perverse or extraneous there should be no dispute at all which requires consideration It is difficult to imagine on the language of Ss. 10 and 12 that all possible disputes are comprised within these two sections and that a suit of the present nature where a certain unilateral mischief is sought to be controlled must also be deemed to have been covered by the wording of S. 10 or 12 of the Act.(14) WE may point out that what the plaintiffs in this case are seeking to do is to prevent the implementation of the settlement dated January 9, 1971 as against those who have not already agreed to it or who are not willing to subscribe to that settlement hereafter. The general scheme of the Act shows that there is a provision that where a settlement has ceased to have a binding force either by efflux of time or by reason of termination of the settlement by way of notice served under S. 9a, the settlement or the contract of service has got to continue and shall be the basis of payment unless a new contract of service is replaced. It is not permissible for an employer to change unilaterally the terms and conditions of service without following the due procedure under the Act and to begin to enforce the changed terms and conditions whether the employees agree to it or not. We do not find any provision in the Act, and none has been pointed out to us, which enables a workman to prevent such unilateral mischief on the part of an employer. Reference was made in this connection to a judgment of a learned Judge of the mysore High Court in Nippani Electricity Co. (Pvt.) Ltd. v. Bhim Rao Laxman Patil, [1972I l. L. J. 69], and a Division Bench judgment of this High Court in Pigment Lukes, etc. v. Sitaram, (1968) 71 Bom. L. R. 452. In the former case, the learned single Judge was considering the case of a workman who were retrenched and who raised the dispute that the retrenchment was not bona fide. In the latter case, the Division Bench was dealing with the case of workman whose services were terminated because of the closure of the factory and who was noting of the factory. We do not think that these two decisions or the ratio thereof can be of any assistance to the presentNo. 1, in the present case. Retrenchment or reinstatement in service under certain circumstances form theof chapter VA and remedies are also provided by that chapter. In both the judgments referred to above the question that fell for consideration was whether the relief of declaring that a person continues to be in service or should be reinstated in service could be granted by a civil Court or not. At common law for a breach of contract of service there does not seem to be any remedy available by way of reinstatement or by way of declaration that a person continues to be in the service of the employer, except those cases which are covered by Art. 311 of the Constitution. However, how to deal with a retrenched worker and whether to reinstate him under certain circumstances form theof specific legislation contained in Chapter VA of the Act. In the circumstances, therefore, it is clear that the civil Court could have no jurisdiction to entertain suits of the type which were involved in those two judgments, The particular principle that where a special Act creates a special right and also provides adequate remedy for enforcement thereof the jurisdiction of the civil Court must be impliedly held to have been barred would undoubtedly come into play and more so when the civil Court was otherwise unable to grant relief at common law which was sought by the plaintiffs in those suits.(15) THIS would bring us to the consideration of the provisions of S. 33c which are referred to as providing sufficient and adequate remedy to the present plaintiffs. A close examination of(1) and (2) of S. 33c would show that the Authority referred in S. 33c is more in the position of an executing Court rather than an Authority seized of a wider jurisdiction to decide all complicated questions of law and fact involved in the dispute. The very opening clause of(1) of S. 33c, shows that the claims dealt with are primarily claims for money due to a workman from an employer under a settlement or an award or under the provisions of Chapter va. For the purpose of making recovery under the provisions of(1) of S. 33c, the workman has first to apply to the appropriate Government and the appropriate Government is to be satisfied that the money is in fact due to the workman. This again is dependent on the subjective satisfaction of the appropriate Government and the compulsive element for making the appropriate Government issue the requisite certificate is wanting. The decision of the appropriate Government to refuse to issue a certificate is also not challengeable in a Court of law or elsewhere by any proceeding. Even under(2) of S. 33c it would appear that two conditions have got to be satisfied. The first condition is that the workman must be entitled to some money or some benefit which is capable of being computed in terms of money and the second condition is that if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, them the question may, subject to any rules that may be made under the Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government. It was emphatically argued before us that under(2), at any rate, it would have been possible for the present plaintiffs to apply for recovery of money due under the earlier settlement and further claim immunity from the enforcement of the second settlement of 1971. Some reliance was placed upon the observations of the Supreme Court in bombay Gas Co. v. Gopal Bhiva, [1963II L. L. J. 608]; So far as this judgment of the Supreme court is concerned we are of the view that the real scope of the tribunal under S. 33c is to be found in its observation that the proceeding contemplated by S. 33c (2) are, in many cases, analogous to execution proceedings and the Labour Court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing Court and to the extent as an executing Court is in a position to interpret the decree and not go behind it, the position of tribunal seems to have been properly indicated. It is only incidental question of interpretation that can be handled by the Courts under S. 33c jut as an executing Court can undoubtedly interpret a decree and find out the real meaning thereof. Essentially, however, only money claims are being dealt with under both theof S. 33c. We have already pointed out that under(1) of S. 33c it is again the subjective satisfaction of the appropriate Government which must be brought about before a certificate could be issued. The remedy of recovery under(1) is under the terms of thatwithout prejudice to any other modes of recovery which may be available to the particular workman. It is impossible to say in the circumstances that the only remedy that is provided by the Legislature to a workman is under(1) of S. 33c so that the other modes of recovery would be deemed to have been barred. On the contrary, the plain language of the section shows that the mode provided therein could be resorted to without prejudice to any other mode of recovery available under law.(2), as we have pointed out, has also obvious limitation, because the Labour Court under thatprimarily performs the functions which are analogous to the function of an executing Court and the determination of complicated issues, such as, which of the two settlements in the field would really be attracted and which of them should be enforced, seems to be beyond the competence of the Labour Court. All this discussion we have made till now is on the assumption that the plaintiffs in this case have come before the Court with a money claim. However, when the real nature of the claim before us is considered, it becomes clear that it is a simple claim of injunction wanting to prevent a mischief being done to them without their consent. For preventing recurring breaches of an existing contract or for preventing a recurring implementation of a new contract unilaterally by the employer, there seems to be no remedy provided by the Act at all. It is difficult to tell the plaintiffs that they will not file a suit for claiming an injunction restraining their employer from enforcing a particular contract which is not binding on them. The attempt of the employer to enforce that contract month after month could be prevented only by an appropriate injunction of a civil Court and such an injunction seems to be beyond the competence of any Labour Courts or tribunals provided by theBEFORE we dispose of this appeal, we may incidentally note that before the learned single judge who decided the first appeal out of which this appeal arises, some more points were raised which are not specifically raised before us. One of the points whether the present suits is one for specific performance was faintly argued before us and the discussion made by us above would clearly show that there is no attempt on the part of the plaintiffs to claim specific performance of any particular contract. There is merely an attempt to prevent the employer from enforcing a particular settlement or contract. Besides the question whether the suit is one for specific performance, it was argued at considerable length before the learned single Judge that the payments contemplated under the incentive scheme are either bonus or payment in the nature of bonus and, therefore, covered by the provisions of the Bonus Act. The other point that was canvassed before the learned single Judge was that the workers who are neither members of the engineering Mazdoor Sabha or of the Association of Engineering Workers have no particular contract in their favour and could not have jointed the present plaintiff under the provisions of o. I. R. 8, Civil Procedure Code and no adjudication could be made in their behalf by resorting to the procedure laid down in O. I. R. 8. It is needless to point out that it has been held by the trial court as well as by the first appellant Court that the manner in which payments are made from year after year from 1966 till 1971 itself constitutes a contract and such a contract exists between all workmen, whether members of a particular union or not, and defendant No.The third point that was canvassed was that the injunction that is granted by the trial Court is purely a temporary injunction and temporary injunction cannot form theof the decree. All these contentions have been negatived by the first appellate Court and we need not consider them for the simple reason that none of them has been argued beforeTHE only other point that was pressed before us was that the injunction granted by the trial court would not fall under any specific provision of the Specific Relief Act, 1963. We do not see much substance in this argument. The Courts jurisdiction to grant injunctions is covered by the provisions of that Act. The provisions of S. 38 (1) or clause (d) of(3) could be properly invoked in the circumstances of the present case. The discussion made by us earlier in this judgment would show that the recurring claims and recurring breaches could not be sufficiently dealt with by the Industrial Disputes Act. An injunction of the type granted by the trial Court in this case would undoubtedly prevent a multiplicity of judicial proceedings which may have to be resorted to unless the implementation of the settlement of 1971 is prevented. It could not be said in this case that there is no contract at all between the employer and the employees who are being paid for years together. The attempt on the part of theNo. 1 to enforce a new contract without the consent of the plaintiffs and other similarly circumstanced would amount to breach of the existing contract. Nobody suggest that the terms and conditions of service could not be changed by ushering in a new contract, settlement or award. The grievance of the plaintiffs is that without resorting to the procedure provided by the Act, a direct interference with the existing terms and conditions of service is resorted to by defendant No. 1, the appellant. We are, therefore, of the opinion that under the provisions of S. 38 (1) and clause (d) of(3) of that section it would be appropriate to grant the kind of injunction which has been granted in thisWE may incidentally note that there arefiled by respondents Nos. 1 and 2 original plaintiffs. Thoserelate to certain observations which appear in the judgment of the learned single Judge. While dealing with the settlement of 1971 the learned single Judge observes that if the agreement dated January 9, 1971 could be styled as a "settlement," it would have the binding effect on all workmen who are not only members of defendant No. 2 union but other workmen as well who are not only members of defendant No. 2 union but other workmen as well who are not members of defendant No. 2 union. In fact the settlement is with defendant No. 2 union of which the plaintiffs are not the members and there are many others who are also not members of that union. This is only an incidental observation and could not legitimately form thes. However, Mr. Damania for theexpressed apprehension that these observations might be used against him in some manner. When we looked at the provisions of the Act, we found that a proviso is now introduced after(1) of S. 18 by Maharashtra Amending Act No. 1 of 1972. The effect of the proviso is that when a settlement which is not arrived in the course of conciliation proceedings takes place with a recognised union under(1) of S. 18, it is now made binding not only upon the members of that union but also upon persons referred to in cls. (c) and (d) of(3) of S. 18. It is our surmise that perhaps these provisions were present in the mind of the learned single Judge when generalisation was made by him about the binding effect of the settlement. However, so far as the facts of this case are concerned, the proviso is not at all attracted and its provisions are not applicable to settlements either of 1966 or 1971. The learned single Judges observations are merely incidental, perhaps based upon amended provisions of S. 18 and would, therefore, have no binding effect at all on either party to this litigation. | 0 | 8,219 | 5,221 | ### Instruction:
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the first appeal out of which this appeal arises, some more points were raised which are not specifically raised before us. One of the points whether the present suits is one for specific performance was faintly argued before us and the discussion made by us above would clearly show that there is no attempt on the part of the plaintiffs to claim specific performance of any particular contract. There is merely an attempt to prevent the employer from enforcing a particular settlement or contract. Besides the question whether the suit is one for specific performance, it was argued at considerable length before the learned single Judge that the payments contemplated under the incentive scheme are either bonus or payment in the nature of bonus and, therefore, covered by the provisions of the Bonus Act. The other point that was canvassed before the learned single Judge was that the workers who are neither members of the engineering Mazdoor Sabha or of the Association of Engineering Workers have no particular contract in their favour and could not have jointed the present plaintiff under the provisions of o. I. R. 8, Civil Procedure Code and no adjudication could be made in their behalf by resorting to the procedure laid down in O. I. R. 8. It is needless to point out that it has been held by the trial court as well as by the first appellant Court that the manner in which payments are made from year after year from 1966 till 1971 itself constitutes a contract and such a contract exists between all workmen, whether members of a particular union or not, and defendant No. 1-company. The third point that was canvassed was that the injunction that is granted by the trial Court is purely a temporary injunction and temporary injunction cannot form the subject-matter of the decree. All these contentions have been negatived by the first appellate Court and we need not consider them for the simple reason that none of them has been argued before us. (18) THE only other point that was pressed before us was that the injunction granted by the trial court would not fall under any specific provision of the Specific Relief Act, 1963. We do not see much substance in this argument. The Courts jurisdiction to grant injunctions is covered by the provisions of that Act. The provisions of S. 38 (1) or clause (d) of Sub-s. (3) could be properly invoked in the circumstances of the present case. The discussion made by us earlier in this judgment would show that the recurring claims and recurring breaches could not be sufficiently dealt with by the Industrial Disputes Act. An injunction of the type granted by the trial Court in this case would undoubtedly prevent a multiplicity of judicial proceedings which may have to be resorted to unless the implementation of the settlement of 1971 is prevented. It could not be said in this case that there is no contract at all between the employer and the employees who are being paid for years together. The attempt on the part of the employer-defendant No. 1 to enforce a new contract without the consent of the plaintiffs and other similarly circumstanced would amount to breach of the existing contract. Nobody suggest that the terms and conditions of service could not be changed by ushering in a new contract, settlement or award. The grievance of the plaintiffs is that without resorting to the procedure provided by the Act, a direct interference with the existing terms and conditions of service is resorted to by defendant No. 1, the appellant. We are, therefore, of the opinion that under the provisions of S. 38 (1) and clause (d) of Sub-s. (3) of that section it would be appropriate to grant the kind of injunction which has been granted in this case. (19) WE may incidentally note that there are cross-objections filed by respondents Nos. 1 and 2 original plaintiffs. Those cross-objections relate to certain observations which appear in the judgment of the learned single Judge. While dealing with the settlement of 1971 the learned single Judge observes that if the agreement dated January 9, 1971 could be styled as a "settlement," it would have the binding effect on all workmen who are not only members of defendant No. 2 union but other workmen as well who are not only members of defendant No. 2 union but other workmen as well who are not members of defendant No. 2 union. In fact the settlement is with defendant No. 2 union of which the plaintiffs are not the members and there are many others who are also not members of that union. This is only an incidental observation and could not legitimately form the subject-matter of cross-objections. However, Mr. Damania for the respondents-plaintiffs expressed apprehension that these observations might be used against him in some manner. When we looked at the provisions of the Act, we found that a proviso is now introduced after Sub-s. (1) of S. 18 by Maharashtra Amending Act No. 1 of 1972. The effect of the proviso is that when a settlement which is not arrived in the course of conciliation proceedings takes place with a recognised union under Sub-s. (1) of S. 18, it is now made binding not only upon the members of that union but also upon persons referred to in cls. (c) and (d) of Sub-s. (3) of S. 18. It is our surmise that perhaps these provisions were present in the mind of the learned single Judge when generalisation was made by him about the binding effect of the settlement. However, so far as the facts of this case are concerned, the proviso is not at all attracted and its provisions are not applicable to settlements either of 1966 or 1971. The learned single Judges observations are merely incidental, perhaps based upon amended provisions of S. 18 and would, therefore, have no binding effect at all on either party to this litigation.
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to be beyond the competence of any Labour Courts or tribunals provided by theBEFORE we dispose of this appeal, we may incidentally note that before the learned single judge who decided the first appeal out of which this appeal arises, some more points were raised which are not specifically raised before us. One of the points whether the present suits is one for specific performance was faintly argued before us and the discussion made by us above would clearly show that there is no attempt on the part of the plaintiffs to claim specific performance of any particular contract. There is merely an attempt to prevent the employer from enforcing a particular settlement or contract. Besides the question whether the suit is one for specific performance, it was argued at considerable length before the learned single Judge that the payments contemplated under the incentive scheme are either bonus or payment in the nature of bonus and, therefore, covered by the provisions of the Bonus Act. The other point that was canvassed before the learned single Judge was that the workers who are neither members of the engineering Mazdoor Sabha or of the Association of Engineering Workers have no particular contract in their favour and could not have jointed the present plaintiff under the provisions of o. I. R. 8, Civil Procedure Code and no adjudication could be made in their behalf by resorting to the procedure laid down in O. I. R. 8. It is needless to point out that it has been held by the trial court as well as by the first appellant Court that the manner in which payments are made from year after year from 1966 till 1971 itself constitutes a contract and such a contract exists between all workmen, whether members of a particular union or not, and defendant No.The third point that was canvassed was that the injunction that is granted by the trial Court is purely a temporary injunction and temporary injunction cannot form theof the decree. All these contentions have been negatived by the first appellate Court and we need not consider them for the simple reason that none of them has been argued beforeTHE only other point that was pressed before us was that the injunction granted by the trial court would not fall under any specific provision of the Specific Relief Act, 1963. We do not see much substance in this argument. The Courts jurisdiction to grant injunctions is covered by the provisions of that Act. The provisions of S. 38 (1) or clause (d) of(3) could be properly invoked in the circumstances of the present case. The discussion made by us earlier in this judgment would show that the recurring claims and recurring breaches could not be sufficiently dealt with by the Industrial Disputes Act. An injunction of the type granted by the trial Court in this case would undoubtedly prevent a multiplicity of judicial proceedings which may have to be resorted to unless the implementation of the settlement of 1971 is prevented. It could not be said in this case that there is no contract at all between the employer and the employees who are being paid for years together. The attempt on the part of theNo. 1 to enforce a new contract without the consent of the plaintiffs and other similarly circumstanced would amount to breach of the existing contract. Nobody suggest that the terms and conditions of service could not be changed by ushering in a new contract, settlement or award. The grievance of the plaintiffs is that without resorting to the procedure provided by the Act, a direct interference with the existing terms and conditions of service is resorted to by defendant No. 1, the appellant. We are, therefore, of the opinion that under the provisions of S. 38 (1) and clause (d) of(3) of that section it would be appropriate to grant the kind of injunction which has been granted in thisWE may incidentally note that there arefiled by respondents Nos. 1 and 2 original plaintiffs. Thoserelate to certain observations which appear in the judgment of the learned single Judge. While dealing with the settlement of 1971 the learned single Judge observes that if the agreement dated January 9, 1971 could be styled as a "settlement," it would have the binding effect on all workmen who are not only members of defendant No. 2 union but other workmen as well who are not only members of defendant No. 2 union but other workmen as well who are not members of defendant No. 2 union. In fact the settlement is with defendant No. 2 union of which the plaintiffs are not the members and there are many others who are also not members of that union. This is only an incidental observation and could not legitimately form thes. However, Mr. Damania for theexpressed apprehension that these observations might be used against him in some manner. When we looked at the provisions of the Act, we found that a proviso is now introduced after(1) of S. 18 by Maharashtra Amending Act No. 1 of 1972. The effect of the proviso is that when a settlement which is not arrived in the course of conciliation proceedings takes place with a recognised union under(1) of S. 18, it is now made binding not only upon the members of that union but also upon persons referred to in cls. (c) and (d) of(3) of S. 18. It is our surmise that perhaps these provisions were present in the mind of the learned single Judge when generalisation was made by him about the binding effect of the settlement. However, so far as the facts of this case are concerned, the proviso is not at all attracted and its provisions are not applicable to settlements either of 1966 or 1971. The learned single Judges observations are merely incidental, perhaps based upon amended provisions of S. 18 and would, therefore, have no binding effect at all on either party to this litigation.
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Hamza Haji Vs. State Of Kerala | Review was not maintainable, cannot deter a Court moved in that behalf from declaring the earlier order as vitiated by fraud. 18. The High Court, as a court of record, has exercised its jurisdiction to set at naught the order of the Forest Tribunal thus procured by the appellant by finding that the same is vitiated by fraud. There cannot be any doubt that the court in exercise of its jurisdiction under Article 215 of the Constitution of India has the power to undo a decision that has been obtained by playing a fraud on the court. The appellant has invoked our jurisdiction under Article 136 of the Constitution of India. When we find in agreement with the High Court that the order secured by him is vitiated by fraud, it is obvious that this Court should decline to come to his aid by refusing the exercise of its discretionary jurisdiction under Article 136 of the Constitution of India. We do not think that it is necessary to refer to any authority in support of this position except to notice the decision in Ashok Nagar Welfare Association and another vs. R.K. Sharma and others [(2001) Supp. 5 SCR 662). 19. The order of the Forest Tribunal in the case on hand had merged in the decision in MFA No.328 of 1981 rendered by the High Court. The governing decision, therefore, was the decision of the High Court. When seeking to question the decision as being vitiated by fraud, the proper course to adopt was to move the court that had rendered the decision, by an application. In a case where an appeal is possible, an appeal could be filed. The House of Lords indicated in Kinch Vs. Walcott (supra) that it will be in the power of the party to the decision complaining of fraud to apply directly to the court which pronounced the judgment to vacate it. The Full Bench of the Bombay High court in Guddappa Chikkappa Kurbar and another vs. Balaji Ramji Dange (AIR 1941 Bombay 274) observed that no Court will allow itself to be used as an instrument of fraud and no Court, by the application of rules of evidence or procedure, can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. In Hip Foong Hong vs. H. Neotia and Company (1918 Appeal Cases 888) the Privy Council held that if a judgment is affected by fraudulent conduct it must be set aside. In Rex vs. Recorder of Leicester (1947 (1) K B 726) it was held that a certiorari would lie to quash a judgment on the ground that it has been obtained by fraud. The basic principle obviously is that a party who had secured a judgment by fraud should not be enabled to enjoy the fruits thereof. In this situation, the High Court in this case, could have clearly either quashed the decision of the Forest Tribunal in OA No.247 of 1979 or could have set aside its own judgment in MFA No.328 of 1981 dismissing the appeal from the decision of the Forest Tribunal at the stage of admission and vacated the order of the Forest Tribunal by allowing that appeal or could have exercised its jurisdiction as a court of record by invoking Article 215 of the Constitution to set at naught the decision obtained by the appellant by playing a fraud on the Forest Tribunal. The High Court has chosen to exercise its power as a court of record to nullify a decision procured by the appellant by playing a fraud on the court. We see no objection to the course adopted by the High Court even assuming that we are inclined to exercise our jurisdiction under Article 136 of the Constitution of India at the behest of the appellant. 20. In the view that we have taken as above, the plea that the second review was not maintainable, that the Division Bench could not have ignored the earlier orders of the High Court dismissing the appeal at the stage of admission and the dismissing of the petition for condonation of delay in filing the first review, are all of no avail to the appellant. In this case, the Forest Tribunal had also been moved by way of review and that tribunal refused to exercise its jurisdiction under Section 8B of the Act and nothing stands in the way of the High Court setting aside that order on a finding that the original order from the Forest Tribunal was secured by playing a fraud on the Tribunal. Equally, nothing stood in the way of the High Court reviewing the judgment in O.P. No. 2926 of 1989 in which a mandamus was issued by the High Court to restore possession of the application schedule property to the appellant. Similarly, nothing stood in the way of the High Court in allowing O.P. No. 20946 OF 1997 filed by a body of citizens challenging the restoration of 20 acres of virgin forest to the appellant in presumed enforcement of the order in O.A. No. 247 of 1979 and passing the necessary order nullifying the original order. The fact that the High Court has chosen to review the earlier order on the petition for condonation of delay in filing the first review petition and then to exercise the power of review cannot be of any moment in the light of the what we have stated. In any event, as we have indicated, this is a fit case where we should clearly decline to exercise our jurisdiction under Article 136 of the Constitution of India to come to the aid of the appellant to secure to him the fruits of the fraud practiced by him on the Forest Tribunal and the High Court. Thus, we find no merit in the argument that the High Court had exceeded its jurisdiction in setting aside the order of the Forest Tribunal at this distance of time. 21. | 0[ds]17. Thus, it appears to be clear that if the earlier order from the Forest Tribunal has been obtained by the appellant on perjured evidence, that by itself would not enable the Court in exercise of its power of certiorari or of review or under Article 215 of the Constitution of India, to set at naught the earlier order. But if the Court finds that the appellant had founded his case before the Forest Tribunal on a false plea or on a claim which he knew to be false and suppressed documents or transactions which had relevance in deciding his claim, the same would amount to fraud. In this case, the appellant had purchased an extent of about 55 acres in the year 1968 under Document No. 2685 of 1968 dated 2.6.1968. He had, even according to his evidence before the Forest Tribunal, gifted 5 acres of land to his brother under a deed dated 30.1.1969. In addition, according to the State, he had sold, out of the extent of 55.25 acres, an extent of 49.93 acres by various sale deeds during the years 1971 and 1972. Though, the details of the sale deeds like the numbers of the registered documents, the dates of sale, the names of the transferees, the extents involved and the considerations received were set out by the State in its application for review before the High Court, except for a general denial, the appellant could not and did not specifically deny the transactions. Same is the case in this Court, where in the counter affidavit, the details of these transactions have been set out by the State and in the rejoinder filed by the appellant, there is no specific denial of these transaction or of the extents involved in those transactions. Therefore, it stands established without an iota of doubt as found by the High Court, that the appellant suppressed the fact that he had parted with almost the entire property purchased by him under the registered document through which he claimed title to the petition schedule property before the Forest Tribunal. In other words, when he claimed that he had title to 20 acres of land and the same had not vested in the State and in the alternative, he bona fide intended to cultivate the land and was cultivating that land, as a matter of fact, he did not have either title or possession over that land. The Tribunal had found that the land was a private forest and hence has vested under the Act. The Tribunal had granted relief to the appellant only based on Section 3(3) of the Act, which provided that so much extent of private forest held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him and that does not exceed the extent of the ceiling area applicable to him under Section 82 of the Kerala Land Reforms Act, could be exempted. Therefore, unless, the appellant had title to the application schedule land and proved that he intended to cultivate that land himself, he would not have been entitled to an order under Section 3(3) of the Act. It is obvious that when he made the claim, the appellant neither had title nor possession over the land. There could not have been any intention on his part to cultivate the land with which he had already parted and of which he had no right to possession. Therefore, the appellant played a fraud on the Court by holding out that he was the title holder of the application schedule property and he intended to cultivate the same, while procuring the order for exclusion of the application schedule lands. It was not a case of mere perjured evidence. It was suppression of the most vital fact and the founding of a claim on at fact. It was done knowingly and deliberately, with the intention to deceive. Therefore, the finding of the High Court in the judgment under appeal that the appellant had procured the earlier order from the Forest Tribunal by playing a fraud on it, stands clearly established. It was not a case of the appellant merely putting forward a false claim or obtaining a judgment based on perjured evidence. This was a case where on a fundamental fact of entitlement to relief, he had deliberately misled the Court by suppressing vital information and putting forward a false claim, false to his knowledge, and a claim which he knew had no basis either in fact or on law. It is therefore clear that the order of the Forest Tribunal was procured by the appellant by playing a fraud and the said order is vitiated by fraud. The fact that the High Court on the earlier occasion declined to interfere either on the ground of delay in approaching it or on the ground that a Second Review was not maintainable, cannot deter a Court moved in that behalf from declaring the earlier order as vitiated by fraud18. The High Court, as a court of record, has exercised its jurisdiction to set at naught the order of the Forest Tribunal thus procured by the appellant by finding that the same is vitiated by fraud. There cannot be any doubt that the court in exercise of its jurisdiction under Article 215 of the Constitution of India has the power to undo a decision that has been obtained by playing a fraud on the court. The appellant has invoked our jurisdiction under Article 136 of the Constitution of India. When we find in agreement with the High Court that the order secured by him is vitiated by fraud, it is obvious that this Court should decline to come to his aid by refusing the exercise of its discretionary jurisdiction under Article 136 of the Constitution of India. We do not think that it is necessary to refer to any authority in support of this position except to notice the decision in Ashok Nagar Welfare Association and another vs. R.K. Sharma and others [(2001) Supp. 5 SCR 662)19. The order of the Forest Tribunal in the case on hand had merged in the decision in MFA No.328 of 1981 rendered by the High Court. The governing decision, therefore, was the decision of the High Court. When seeking to question the decision as being vitiated by fraud, the proper course to adopt was to move the court that had rendered the decision, by an application. In a case where an appeal is possible, an appeal could be filed. The House of Lords indicated in Kinch Vs. Walcott (supra) that it will be in the power of the party to the decision complaining of fraud to apply directly to the court which pronounced the judgment to vacate it. The Full Bench of the Bombay High court in Guddappa Chikkappa Kurbar and another vs. Balaji Ramji Dange (AIR 1941 Bombay 274) observed that no Court will allow itself to be used as an instrument of fraud and no Court, by the application of rules of evidence or procedure, can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. In Hip Foong Hong vs. H. Neotia and Company (1918 Appeal Cases 888) the Privy Council held that if a judgment is affected by fraudulent conduct it must be set aside. In Rex vs. Recorder of Leicester (1947 (1) K B 726) it was held that a certiorari would lie to quash a judgment on the ground that it has been obtained by fraud. The basic principle obviously is that a party who had secured a judgment by fraud should not be enabled to enjoy the fruits thereof. In this situation, the High Court in this case, could have clearly either quashed the decision of the Forest Tribunal in OA No.247 of 1979 or could have set aside its own judgment in MFA No.328 of 1981 dismissing the appeal from the decision of the Forest Tribunal at the stage of admission and vacated the order of the Forest Tribunal by allowing that appeal or could have exercised its jurisdiction as a court of record by invoking Article 215 of the Constitution to set at naught the decision obtained by the appellant by playing a fraud on the Forest Tribunal. The High Court has chosen to exercise its power as a court of record to nullify a decision procured by the appellant by playing a fraud on the court. We see no objection to the course adopted by the High Court even assuming that we are inclined to exercise our jurisdiction under Article 136 of the Constitution of India at the behest of the appellant20. In the view that we have taken as above, the plea that the second review was not maintainable, that the Division Bench could not have ignored the earlier orders of the High Court dismissing the appeal at the stage of admission and the dismissing of the petition for condonation of delay in filing the first review, are all of no avail to the appellant. In this case, the Forest Tribunal had also been moved by way of review and that tribunal refused to exercise its jurisdiction under Section 8B of the Act and nothing stands in the way of the High Court setting aside that order on a finding that the original order from the Forest Tribunal was secured by playing a fraud on the Tribunal. Equally, nothing stood in the way of the High Court reviewing the judgment in O.P. No. 2926 of 1989 in which a mandamus was issued by the High Court to restore possession of the application schedule property to the appellant. Similarly, nothing stood in the way of the High Court in allowing O.P. No. 20946 OF 1997 filed by a body of citizens challenging the restoration of 20 acres of virgin forest to the appellant in presumed enforcement of the order in O.A. No. 247 of 1979 and passing the necessary order nullifying the original order. The fact that the High Court has chosen to review the earlier order on the petition for condonation of delay in filing the first review petition and then to exercise the power of review cannot be of any moment in the light of the what we have stated. In any event, as we have indicated, this is a fit case where we should clearly decline to exercise our jurisdiction under Article 136 of the Constitution of India to come to the aid of the appellant to secure to him the fruits of the fraud practiced by him on the Forest Tribunal and the High Court. Thus, we find no merit in the argument that the High Court had exceeded its jurisdiction in setting aside the order of the Forest Tribunal at this distance of time. | 0 | 6,140 | 1,960 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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Review was not maintainable, cannot deter a Court moved in that behalf from declaring the earlier order as vitiated by fraud. 18. The High Court, as a court of record, has exercised its jurisdiction to set at naught the order of the Forest Tribunal thus procured by the appellant by finding that the same is vitiated by fraud. There cannot be any doubt that the court in exercise of its jurisdiction under Article 215 of the Constitution of India has the power to undo a decision that has been obtained by playing a fraud on the court. The appellant has invoked our jurisdiction under Article 136 of the Constitution of India. When we find in agreement with the High Court that the order secured by him is vitiated by fraud, it is obvious that this Court should decline to come to his aid by refusing the exercise of its discretionary jurisdiction under Article 136 of the Constitution of India. We do not think that it is necessary to refer to any authority in support of this position except to notice the decision in Ashok Nagar Welfare Association and another vs. R.K. Sharma and others [(2001) Supp. 5 SCR 662). 19. The order of the Forest Tribunal in the case on hand had merged in the decision in MFA No.328 of 1981 rendered by the High Court. The governing decision, therefore, was the decision of the High Court. When seeking to question the decision as being vitiated by fraud, the proper course to adopt was to move the court that had rendered the decision, by an application. In a case where an appeal is possible, an appeal could be filed. The House of Lords indicated in Kinch Vs. Walcott (supra) that it will be in the power of the party to the decision complaining of fraud to apply directly to the court which pronounced the judgment to vacate it. The Full Bench of the Bombay High court in Guddappa Chikkappa Kurbar and another vs. Balaji Ramji Dange (AIR 1941 Bombay 274) observed that no Court will allow itself to be used as an instrument of fraud and no Court, by the application of rules of evidence or procedure, can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. In Hip Foong Hong vs. H. Neotia and Company (1918 Appeal Cases 888) the Privy Council held that if a judgment is affected by fraudulent conduct it must be set aside. In Rex vs. Recorder of Leicester (1947 (1) K B 726) it was held that a certiorari would lie to quash a judgment on the ground that it has been obtained by fraud. The basic principle obviously is that a party who had secured a judgment by fraud should not be enabled to enjoy the fruits thereof. In this situation, the High Court in this case, could have clearly either quashed the decision of the Forest Tribunal in OA No.247 of 1979 or could have set aside its own judgment in MFA No.328 of 1981 dismissing the appeal from the decision of the Forest Tribunal at the stage of admission and vacated the order of the Forest Tribunal by allowing that appeal or could have exercised its jurisdiction as a court of record by invoking Article 215 of the Constitution to set at naught the decision obtained by the appellant by playing a fraud on the Forest Tribunal. The High Court has chosen to exercise its power as a court of record to nullify a decision procured by the appellant by playing a fraud on the court. We see no objection to the course adopted by the High Court even assuming that we are inclined to exercise our jurisdiction under Article 136 of the Constitution of India at the behest of the appellant. 20. In the view that we have taken as above, the plea that the second review was not maintainable, that the Division Bench could not have ignored the earlier orders of the High Court dismissing the appeal at the stage of admission and the dismissing of the petition for condonation of delay in filing the first review, are all of no avail to the appellant. In this case, the Forest Tribunal had also been moved by way of review and that tribunal refused to exercise its jurisdiction under Section 8B of the Act and nothing stands in the way of the High Court setting aside that order on a finding that the original order from the Forest Tribunal was secured by playing a fraud on the Tribunal. Equally, nothing stood in the way of the High Court reviewing the judgment in O.P. No. 2926 of 1989 in which a mandamus was issued by the High Court to restore possession of the application schedule property to the appellant. Similarly, nothing stood in the way of the High Court in allowing O.P. No. 20946 OF 1997 filed by a body of citizens challenging the restoration of 20 acres of virgin forest to the appellant in presumed enforcement of the order in O.A. No. 247 of 1979 and passing the necessary order nullifying the original order. The fact that the High Court has chosen to review the earlier order on the petition for condonation of delay in filing the first review petition and then to exercise the power of review cannot be of any moment in the light of the what we have stated. In any event, as we have indicated, this is a fit case where we should clearly decline to exercise our jurisdiction under Article 136 of the Constitution of India to come to the aid of the appellant to secure to him the fruits of the fraud practiced by him on the Forest Tribunal and the High Court. Thus, we find no merit in the argument that the High Court had exceeded its jurisdiction in setting aside the order of the Forest Tribunal at this distance of time. 21.
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ground that a Second Review was not maintainable, cannot deter a Court moved in that behalf from declaring the earlier order as vitiated by fraud18. The High Court, as a court of record, has exercised its jurisdiction to set at naught the order of the Forest Tribunal thus procured by the appellant by finding that the same is vitiated by fraud. There cannot be any doubt that the court in exercise of its jurisdiction under Article 215 of the Constitution of India has the power to undo a decision that has been obtained by playing a fraud on the court. The appellant has invoked our jurisdiction under Article 136 of the Constitution of India. When we find in agreement with the High Court that the order secured by him is vitiated by fraud, it is obvious that this Court should decline to come to his aid by refusing the exercise of its discretionary jurisdiction under Article 136 of the Constitution of India. We do not think that it is necessary to refer to any authority in support of this position except to notice the decision in Ashok Nagar Welfare Association and another vs. R.K. Sharma and others [(2001) Supp. 5 SCR 662)19. The order of the Forest Tribunal in the case on hand had merged in the decision in MFA No.328 of 1981 rendered by the High Court. The governing decision, therefore, was the decision of the High Court. When seeking to question the decision as being vitiated by fraud, the proper course to adopt was to move the court that had rendered the decision, by an application. In a case where an appeal is possible, an appeal could be filed. The House of Lords indicated in Kinch Vs. Walcott (supra) that it will be in the power of the party to the decision complaining of fraud to apply directly to the court which pronounced the judgment to vacate it. The Full Bench of the Bombay High court in Guddappa Chikkappa Kurbar and another vs. Balaji Ramji Dange (AIR 1941 Bombay 274) observed that no Court will allow itself to be used as an instrument of fraud and no Court, by the application of rules of evidence or procedure, can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. In Hip Foong Hong vs. H. Neotia and Company (1918 Appeal Cases 888) the Privy Council held that if a judgment is affected by fraudulent conduct it must be set aside. In Rex vs. Recorder of Leicester (1947 (1) K B 726) it was held that a certiorari would lie to quash a judgment on the ground that it has been obtained by fraud. The basic principle obviously is that a party who had secured a judgment by fraud should not be enabled to enjoy the fruits thereof. In this situation, the High Court in this case, could have clearly either quashed the decision of the Forest Tribunal in OA No.247 of 1979 or could have set aside its own judgment in MFA No.328 of 1981 dismissing the appeal from the decision of the Forest Tribunal at the stage of admission and vacated the order of the Forest Tribunal by allowing that appeal or could have exercised its jurisdiction as a court of record by invoking Article 215 of the Constitution to set at naught the decision obtained by the appellant by playing a fraud on the Forest Tribunal. The High Court has chosen to exercise its power as a court of record to nullify a decision procured by the appellant by playing a fraud on the court. We see no objection to the course adopted by the High Court even assuming that we are inclined to exercise our jurisdiction under Article 136 of the Constitution of India at the behest of the appellant20. In the view that we have taken as above, the plea that the second review was not maintainable, that the Division Bench could not have ignored the earlier orders of the High Court dismissing the appeal at the stage of admission and the dismissing of the petition for condonation of delay in filing the first review, are all of no avail to the appellant. In this case, the Forest Tribunal had also been moved by way of review and that tribunal refused to exercise its jurisdiction under Section 8B of the Act and nothing stands in the way of the High Court setting aside that order on a finding that the original order from the Forest Tribunal was secured by playing a fraud on the Tribunal. Equally, nothing stood in the way of the High Court reviewing the judgment in O.P. No. 2926 of 1989 in which a mandamus was issued by the High Court to restore possession of the application schedule property to the appellant. Similarly, nothing stood in the way of the High Court in allowing O.P. No. 20946 OF 1997 filed by a body of citizens challenging the restoration of 20 acres of virgin forest to the appellant in presumed enforcement of the order in O.A. No. 247 of 1979 and passing the necessary order nullifying the original order. The fact that the High Court has chosen to review the earlier order on the petition for condonation of delay in filing the first review petition and then to exercise the power of review cannot be of any moment in the light of the what we have stated. In any event, as we have indicated, this is a fit case where we should clearly decline to exercise our jurisdiction under Article 136 of the Constitution of India to come to the aid of the appellant to secure to him the fruits of the fraud practiced by him on the Forest Tribunal and the High Court. Thus, we find no merit in the argument that the High Court had exceeded its jurisdiction in setting aside the order of the Forest Tribunal at this distance of time.
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M.D. Frozen Foods Exports Pvt. Ltd. & Others Vs. Hero Fincorp Ltd | view that in the larger interest of settling the question of law, this issue is also required to be dealt with.36. The SARFAESI Act was brought into force to solve the problem of recovery of large debts in NPAs. Thus, the very rationale for the said Act to be brought into force was to provide an expeditious procedure where there was a security interest. It certainly did not apply retrospectively from the date when it came into force. The question is whether, the Act being applicable to the respondent at a subsequent date and thereby allowing the respondent to utilize its provisions with regards to a past debt, would make any difference to this principle. We are of the view that the answer to the same is in the negative.37. The Act applies to all the claims which would be alive at the time when it was brought into force. Thus, qua the respondent or other NBFCs, it would be applicable similarly from the date when it was so made applicable to them.38. The Full Bench of the Orissa High Court in Sarthak Builders Pvt. Ltd. v. Orissa Rural Development Corporation Limited (supra) has, in fact, succinctly sets out this aspect. No doubt, till the respondent was not a `financial institution within the meaning of Section 2(1)(m)(iv) of the SARFAESI Act, it was not a `secured creditor as defined under Section 2(1)(zd) of the SARFAESI Act and, thus, could not invoke the provisions of the SARFAESI Act. However, the right to proceed under the SARFAESI Act accrued once the Notification was issued. The Full Bench referred to a Division Bench judgment of the Uttarakhand High Court in Unique Engineering Works v. Union of India, II 2004) BC 241 (DB) which dealt with the issue of retrospectivity and retroactivity. In case of retroactivity, the Parliament takes note of the existing conditions and promulgates the remedial measures to rectify those conditions. In fact the SARFAESI Act, in our view, was to remedy such a position and provide a measure against secured interests. The scheme of the SARFAESI Act, is really to provide a procedural remedy against security interest already created. Therefore, an existing borrower, who had been granted financial assistance was covered under Section 2(f) of the said Act as a `borrower. Not only this expression, the definition clauses dealing with `debt securities, `financial assistance, `financial assets, etc., clearly convey the legislative intent that the SARFAESI Act applies to all existing agreements irrespective of the fact whether the lender was a notified `financial institution on the date of the execution of the agreement with the borrower or not. The scheme of the SARFAESI Act sets out an expeditious, procedural methodology, enabling the bank to take possession of the property for non-payment of dues, without intervention of the court. The mere fact that a more expeditious remedy is provided under the SARFAESI Act does not mean that it is substantive in character or has created an altogether new right. To accept the argument of the appellants would imply that they have an inherent right to delay the enforcement against the security interest!39. The catena of judgments referred to by learned senior counsel for the appellants on substantive law not being retrospective in operation, unless expressly stated so in the Act would, thus, have no application to the matter in issue, in view of what we have observed aforesaid. On the other hand, as observed by Buckley, L.J. in West v. Gwynne, 1911 2 Ch 1 at pp. 11, 12, retrospective operation is one matter and interference with existing rights is another. In that context, it was ruled that the provisions of the Conveyancing of Law and Property Act, 1892 were held applicable to leases containing a covenant, condition or agreement against assigning, under-letting or parting with possession or disposing of land or property leased without license or consent to all leases whether executed before or after the commencement of the Act. Such a construction was held not to make the Act retrospective in operation but merely effected the future existing rights under all leases whether executed before or after the date of that Act. (Discussed in Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil & Ors., 1962 Supp (1) SCR 700).40. In a similar vein, are the observations made in the case of In re Athlumney. Ex parte Wilson, [1898] 2 Q.B. 547, where the question posed before the Queens Division Bench was whether Section 23 of the Bankruptcy Act, 1890 was retrospective in its operation. In the aforementioned context, Wright, J., speaking for the Bench, illuminatingly opined:"Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only... it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them...It is said that there is one exception to that rule, namely, that, where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights, and it is suggested here that the alteration made by this section is within that exception..."(Emphasis supplied)41. Similarly, the date on which a debt is declared as an NPA would again have no impact. We are, thus, of the view that the provisions of the SARFAESI Act would become applicable qua all debts owing and live when the Act became applicable to the respondent in terms of the parameters contended by learned senior counsel for the respondent and enlisted at serial Nos. i to iv in para 18. | 0[ds]24.We have examined the rival contentions and the judicial precedents cited before us. The impugned order is aorder giving cogent reasons, but what persuaded us to grant leave and hear the matter finally, was this cleavage of judicial opinions inter se the High Courts, requiring this court to settle the law on the. These observations, thus, leave no manner of doubt and the issue is no more res integra, especially keeping in mind the provisions of Sections 35 and 37 of the SARFAESIThe aforesaid two Acts are, thus, complimentary to each other and it is not a case of election of remedy.30. The only twist in the present case is that, instead of the recovery process under the RDDB Act, we are concerned with an arbitration proceeding. It is trite to say that arbitration is an alternative to the civil proceedings. In fact, when a question was raised as to whether the matters which came within the scope and jurisdiction of the Debt Recovery Tribunal under the RDDB Act, could still be referred to arbitration when both parties have incorporated such a clause, the answer was given in the affirmative. (HDFC Bank Limited v. Satpal Singh Bakshi2013 (134) DRJ 566 (FB) That being the position, the appellants can hardly be permitted to contend that the initiation of arbitration proceedings would, in any manner, prejudice their rights to seek relief under the SARFAESI Act.31. The discussion in the impugned order refers to a judgment of the Full Bench of the Delhi High Court in HDFC Bank Limited v. Satpal Singh Bakshi, 2013 (134) DRJ 566 (FB) opining that an arbitration is an alternative to the RDDB Act. In that context, the learned Single Judge has rightly held that this Full Bench judgment does not, in any manner, help the appellants but, in fact, supports the case of the respondent. The jurisdiction of the Civil Court is barred for matters covered by the RDDB Act, but the parties still have freedom to choose a forum, alternate to, and in place of the regular courts or judicial system for deciding their inter se disputes. All disputes relating to the "right in personam" are arbitrable and, therefore, the choice is given to the parties to choose this alternative forum. A claim of money by a bank or a financial institution cannot be treated as a "right in rem", which has an inherent public interest and would thus not be arbitrable.32. The aforesaid is not a case of election of remedies as was sought to be canvassed by learned senior counsel for the appellants, since the alternatives are between a Civil Court, Arbitral Tribunal or a Debt Recovery Tribunal constituted under the RDDB Act. Insofar as that election is concerned, the mode of settlement of disputes to an arbitral tribunal has been elected. The provisions of the SARFAESI Act are thus, a remedy in addition to the provisions of the Arbitration Act. In Transcore v. Union of India & Anr. (supra) it was clearly observed that the SARFAESI Act was enacted to regulate securitisation and reconstruction of financial assets and enforcement of security interest and for matters connected therewith. Liquidation of secured interest through a more expeditious procedure is what has been envisaged under the SARFAESI Act and the two Acts are cumulative remedies to the secured creditors.33. SARFAESI proceedings are in the nature of enforcement proceedings, while arbitration is an adjudicatory process. In the event that the secured assets are insufficient to satisfy the debts, the secured creditor can proceed against other assets in execution against the debtor, after determination of the pending outstanding amount by a competent forum.34.We are, thus, unequivocally of the view that the judgments of the Full Bench of the Orissa High Court in Sarthak Builders Pvt. Ltd. v. Orissa Rural Development Corporation Limited, 2014 SCC OnLine Ori 75, the Full Bench of the Delhi High Court in HDFC Bank Limited v. Satpal Singh Bakshi (supra) and the Division Bench of the Allahabad High Court in Pradeep Kumar Gupta v. State of U.P., AIR 2010 All 3 lay down the correct proposition of law and the view expressed by the Andhra Pradesh High Court in M/s. Deccan Chronicles Holdings Limited v. Union of India, AIR 2014 Andhra Pradesh 78 following the overruled decision of the Orissa High Court in Subash Chandra Panda v. State of Orissa, AIR 2008 Ori 88 does not set forth the correct position in law. SARFAESI proceedings and arbitration proceedings, thus, can go hand in hand.Questions B & C35. The issue of whether resort can be had to Section 13 of the SARFAESI Act in respect of debts which have arisen out of a loan agreement/mortgage created prior to the application of the SARFAESI Act to the respondent, though urged before us, appears really not to have been canvassed before the learned Single Judge of the Delhi High Court. At least, it finds no substantive mention. We, however, are of the view that in the larger interest of settling the question of law, this issue is also required to be dealt with.36. The SARFAESI Act was brought into force to solve the problem of recovery of large debts in NPAs. Thus, the very rationale for the said Act to be brought into force was to provide an expeditious procedure where there was a security interest. It certainly did not apply retrospectively from the date when it came into force. The question is whether, the Act being applicable to the respondent at a subsequent date and thereby allowing the respondent to utilize its provisions with regards to a past debt, would make any difference to this principle. We are of the view that the answer to the same is in the negative.37. The Act applies to all the claims which would be alive at the time when it was brought into force. Thus, qua the respondent or other NBFCs, it would be applicable similarly from the date when it was so made applicable tofact the SARFAESI Act, in our view, was to remedy such a position and provide a measure against secured interests. The scheme of the SARFAESI Act, is really to provide a procedural remedy against security interest already created. Therefore, an existing borrower, who had been granted financial assistance was covered under Section 2(f) of the said Act as a `borrower. Not only this expression, the definition clauses dealing with `debt securities, `financial assistance, `financial assets, etc., clearly convey the legislative intent that the SARFAESI Act applies to all existing agreements irrespective of the fact whether the lender was a notified `financial institution on the date of the execution of the agreement with the borrower or not. The scheme of the SARFAESI Act sets out an expeditious, procedural methodology, enabling the bank to take possession of the property forof dues, without intervention of the court. The mere fact that a more expeditious remedy is provided under the SARFAESI Act does not mean that it is substantive in character or has created an altogether new right. To accept the argument of the appellants would imply that they have an inherent right to delay the enforcement against the security interest!39. The catena of judgments referred to by learned senior counsel for the appellants on substantive law not being retrospective in operation, unless expressly stated so in the Act would, thus, have no application to the matter in issue, in view of what we have observed aforesaid.Similarly, the date on which a debt is declared as an NPA would again have no impact. We are, thus, of the view that the provisions of the SARFAESI Act would become applicable qua all debts owing and live when the Act became applicable to the respondent in terms of the parameters contended by learned senior counsel for the respondent and enlisted at serial Nos. i to iv in para 18. | 0 | 5,288 | 1,458 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
view that in the larger interest of settling the question of law, this issue is also required to be dealt with.36. The SARFAESI Act was brought into force to solve the problem of recovery of large debts in NPAs. Thus, the very rationale for the said Act to be brought into force was to provide an expeditious procedure where there was a security interest. It certainly did not apply retrospectively from the date when it came into force. The question is whether, the Act being applicable to the respondent at a subsequent date and thereby allowing the respondent to utilize its provisions with regards to a past debt, would make any difference to this principle. We are of the view that the answer to the same is in the negative.37. The Act applies to all the claims which would be alive at the time when it was brought into force. Thus, qua the respondent or other NBFCs, it would be applicable similarly from the date when it was so made applicable to them.38. The Full Bench of the Orissa High Court in Sarthak Builders Pvt. Ltd. v. Orissa Rural Development Corporation Limited (supra) has, in fact, succinctly sets out this aspect. No doubt, till the respondent was not a `financial institution within the meaning of Section 2(1)(m)(iv) of the SARFAESI Act, it was not a `secured creditor as defined under Section 2(1)(zd) of the SARFAESI Act and, thus, could not invoke the provisions of the SARFAESI Act. However, the right to proceed under the SARFAESI Act accrued once the Notification was issued. The Full Bench referred to a Division Bench judgment of the Uttarakhand High Court in Unique Engineering Works v. Union of India, II 2004) BC 241 (DB) which dealt with the issue of retrospectivity and retroactivity. In case of retroactivity, the Parliament takes note of the existing conditions and promulgates the remedial measures to rectify those conditions. In fact the SARFAESI Act, in our view, was to remedy such a position and provide a measure against secured interests. The scheme of the SARFAESI Act, is really to provide a procedural remedy against security interest already created. Therefore, an existing borrower, who had been granted financial assistance was covered under Section 2(f) of the said Act as a `borrower. Not only this expression, the definition clauses dealing with `debt securities, `financial assistance, `financial assets, etc., clearly convey the legislative intent that the SARFAESI Act applies to all existing agreements irrespective of the fact whether the lender was a notified `financial institution on the date of the execution of the agreement with the borrower or not. The scheme of the SARFAESI Act sets out an expeditious, procedural methodology, enabling the bank to take possession of the property for non-payment of dues, without intervention of the court. The mere fact that a more expeditious remedy is provided under the SARFAESI Act does not mean that it is substantive in character or has created an altogether new right. To accept the argument of the appellants would imply that they have an inherent right to delay the enforcement against the security interest!39. The catena of judgments referred to by learned senior counsel for the appellants on substantive law not being retrospective in operation, unless expressly stated so in the Act would, thus, have no application to the matter in issue, in view of what we have observed aforesaid. On the other hand, as observed by Buckley, L.J. in West v. Gwynne, 1911 2 Ch 1 at pp. 11, 12, retrospective operation is one matter and interference with existing rights is another. In that context, it was ruled that the provisions of the Conveyancing of Law and Property Act, 1892 were held applicable to leases containing a covenant, condition or agreement against assigning, under-letting or parting with possession or disposing of land or property leased without license or consent to all leases whether executed before or after the commencement of the Act. Such a construction was held not to make the Act retrospective in operation but merely effected the future existing rights under all leases whether executed before or after the date of that Act. (Discussed in Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil & Ors., 1962 Supp (1) SCR 700).40. In a similar vein, are the observations made in the case of In re Athlumney. Ex parte Wilson, [1898] 2 Q.B. 547, where the question posed before the Queens Division Bench was whether Section 23 of the Bankruptcy Act, 1890 was retrospective in its operation. In the aforementioned context, Wright, J., speaking for the Bench, illuminatingly opined:"Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only... it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them...It is said that there is one exception to that rule, namely, that, where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights, and it is suggested here that the alteration made by this section is within that exception..."(Emphasis supplied)41. Similarly, the date on which a debt is declared as an NPA would again have no impact. We are, thus, of the view that the provisions of the SARFAESI Act would become applicable qua all debts owing and live when the Act became applicable to the respondent in terms of the parameters contended by learned senior counsel for the respondent and enlisted at serial Nos. i to iv in para 18.
### Response:
0
### Explanation:
Court is barred for matters covered by the RDDB Act, but the parties still have freedom to choose a forum, alternate to, and in place of the regular courts or judicial system for deciding their inter se disputes. All disputes relating to the "right in personam" are arbitrable and, therefore, the choice is given to the parties to choose this alternative forum. A claim of money by a bank or a financial institution cannot be treated as a "right in rem", which has an inherent public interest and would thus not be arbitrable.32. The aforesaid is not a case of election of remedies as was sought to be canvassed by learned senior counsel for the appellants, since the alternatives are between a Civil Court, Arbitral Tribunal or a Debt Recovery Tribunal constituted under the RDDB Act. Insofar as that election is concerned, the mode of settlement of disputes to an arbitral tribunal has been elected. The provisions of the SARFAESI Act are thus, a remedy in addition to the provisions of the Arbitration Act. In Transcore v. Union of India & Anr. (supra) it was clearly observed that the SARFAESI Act was enacted to regulate securitisation and reconstruction of financial assets and enforcement of security interest and for matters connected therewith. Liquidation of secured interest through a more expeditious procedure is what has been envisaged under the SARFAESI Act and the two Acts are cumulative remedies to the secured creditors.33. SARFAESI proceedings are in the nature of enforcement proceedings, while arbitration is an adjudicatory process. In the event that the secured assets are insufficient to satisfy the debts, the secured creditor can proceed against other assets in execution against the debtor, after determination of the pending outstanding amount by a competent forum.34.We are, thus, unequivocally of the view that the judgments of the Full Bench of the Orissa High Court in Sarthak Builders Pvt. Ltd. v. Orissa Rural Development Corporation Limited, 2014 SCC OnLine Ori 75, the Full Bench of the Delhi High Court in HDFC Bank Limited v. Satpal Singh Bakshi (supra) and the Division Bench of the Allahabad High Court in Pradeep Kumar Gupta v. State of U.P., AIR 2010 All 3 lay down the correct proposition of law and the view expressed by the Andhra Pradesh High Court in M/s. Deccan Chronicles Holdings Limited v. Union of India, AIR 2014 Andhra Pradesh 78 following the overruled decision of the Orissa High Court in Subash Chandra Panda v. State of Orissa, AIR 2008 Ori 88 does not set forth the correct position in law. SARFAESI proceedings and arbitration proceedings, thus, can go hand in hand.Questions B & C35. The issue of whether resort can be had to Section 13 of the SARFAESI Act in respect of debts which have arisen out of a loan agreement/mortgage created prior to the application of the SARFAESI Act to the respondent, though urged before us, appears really not to have been canvassed before the learned Single Judge of the Delhi High Court. At least, it finds no substantive mention. We, however, are of the view that in the larger interest of settling the question of law, this issue is also required to be dealt with.36. The SARFAESI Act was brought into force to solve the problem of recovery of large debts in NPAs. Thus, the very rationale for the said Act to be brought into force was to provide an expeditious procedure where there was a security interest. It certainly did not apply retrospectively from the date when it came into force. The question is whether, the Act being applicable to the respondent at a subsequent date and thereby allowing the respondent to utilize its provisions with regards to a past debt, would make any difference to this principle. We are of the view that the answer to the same is in the negative.37. The Act applies to all the claims which would be alive at the time when it was brought into force. Thus, qua the respondent or other NBFCs, it would be applicable similarly from the date when it was so made applicable tofact the SARFAESI Act, in our view, was to remedy such a position and provide a measure against secured interests. The scheme of the SARFAESI Act, is really to provide a procedural remedy against security interest already created. Therefore, an existing borrower, who had been granted financial assistance was covered under Section 2(f) of the said Act as a `borrower. Not only this expression, the definition clauses dealing with `debt securities, `financial assistance, `financial assets, etc., clearly convey the legislative intent that the SARFAESI Act applies to all existing agreements irrespective of the fact whether the lender was a notified `financial institution on the date of the execution of the agreement with the borrower or not. The scheme of the SARFAESI Act sets out an expeditious, procedural methodology, enabling the bank to take possession of the property forof dues, without intervention of the court. The mere fact that a more expeditious remedy is provided under the SARFAESI Act does not mean that it is substantive in character or has created an altogether new right. To accept the argument of the appellants would imply that they have an inherent right to delay the enforcement against the security interest!39. The catena of judgments referred to by learned senior counsel for the appellants on substantive law not being retrospective in operation, unless expressly stated so in the Act would, thus, have no application to the matter in issue, in view of what we have observed aforesaid.Similarly, the date on which a debt is declared as an NPA would again have no impact. We are, thus, of the view that the provisions of the SARFAESI Act would become applicable qua all debts owing and live when the Act became applicable to the respondent in terms of the parameters contended by learned senior counsel for the respondent and enlisted at serial Nos. i to iv in para 18.
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Philips India Limited Vs. S Kunju Punnu | more than enough to give a sound support to the case of the plaintiff. The evidence of Dr. Grant appears to have possibly been given by defendant No. 1 mainly with the idea of showing that Dr. Grant has got no concern whatsoever with Defendant No. 1 but at the same time he could not help harming the case of Defendant No. 2 in spite of his honest efforts to save his skin if possible. I have already discussed above the evidence of Dr. Grant as well as the case papers produced by him and it is easy to find that the condition of Gopal was serious on admission. The relevant notices in exhibit 75/1 are taken not by Dr. Grant but by his assistant viz. Dr. Sardesai but the fact remains that Dr. Shaikh had treated Gopal as a patient of flu and he was also brought to him as a patient of flu but on admission, Dr. Grant did not find Gopal as a patient of flu, his diagnosis was, however, a s can be seen from Exhibit 75/3. that Gopal was suffering from acute secondary thrombosis site pririce purpurae infections. Thus, it may be seen that the diagnosis made as well as the line of treatment given by Dr. Shakiikh was neither confirmed nor continued by Dr. Grant and as such his evidence does not help the case or case of Defendant No. 2. On the other hand the case papers produced by Dr. Grant go to show that the case had taken a serious turn and reached an advanced stage and Dr. Shaikh was cognizant of the fact that it had gone out of his control. Similarly, the circumstantial evidence including the conduct of Dr. Shaikh, with regard to the treatment of gopal before as well as after he was removed to and from Dr. Grants Nursing Home, already discussed above, definitely supports the caws of the Plaintiff. All this evidence and circumstances taken together have got the cumulative effect of leading us to the undoubted and irresistible conclusion that Defendant No. 2 was culpably negligent and utterly careless in treating the deceased Gopal and there has certainly been a breach of duty on the part of the companys Doctor".( 63 ) FRO the reasons stated above, the entire reasoning of the learned Judge and the above findings are baseless and unjustified having regard to the nature and symptoms of the disease from which Gopal was suffering and the evidence on record Besides, as already stated above, there is no evidence at all to show that the learned Judge applied his mind to the necessity for the plaintiff to prove, besides negligence the fact that the deceased deteriorated in health or died as a result of that negligence Dr. Gupchups evidence, as discussed above, completely negatives such a fact, as he admitted that no medical treatment exists for haemorrhage cause of the sad and unfortunate death of the deceased Gopal. ( 64 ) MR. Singhavi has not addressed any arguments before us regarding the liability of defendant no. 2. But we are inclined to agree with the learned Civil Judge that if defendant No. 2 as a Company doctor, was negligent in the discharge of his duties, then defendant No. 1 company also would be liable. Mr. Singahvi however fairly stated that he conceded that as medical officer in the part time service of the company defendant No. 2 was in the employment of defendant No. 1 He wanted us not to deal with the question of the liability of the company in view of our conclusion that defendant No. 2 was not negligent. But we do not think that the question should be left open when this appeal is being heard nine years after it was filed. If we were to come to the conclusion that defendant No. 2 was negligent we would have had no hesitation in holding defendant No. 1 liable for it along with defendant No. 2( 65 ) MR. Singhvi, however, addressed an argument that the learned Civil Judge, in any event, erred in taking the lifetime of the plaintiff as 80 years and awarding compensation on the basis of rs. 100/- p. m. being sent by the deceased Gopal to her, when the salary of Gopal was only rs. 105/- p. m. Here too, the question cannot survive in view of our finding that defendant No. 2 was not negligent in the discharge of his duties as a medical officer. Nevertheless the very fact that the plaintiff is still surviving, though the suit was pending for some years in the trial Court and the above appeal is pending in this Court for nine years and her mother died at the age of 80 years, can be a sufficient basis for agreeing with the learned Civil Judge in holding that the longevity of the life which should be given to the plaintiff for the purpose of the suit can be reasonably fixed at 80. There is also nothing unreasonable in the assumption made by the learned civil Judge that if Gopal were to live, he would have sent to the plaintiff, who is ordinarily residing at Kerala with a daughter a sum of Rs. 100 p. m. On that basis, if at all we were to agree with the learned Judge in holding that defendant No. 2 was guilty of negligence in the discharge of his duties the amount of compensation awarded by him would have been considered to be reasonable. ( 66 ) HOWEVER, as the plaintiff has failed to prove actionable negligence on the part of defendant no. 2 her suit must be dismissed and the decree passed by the learned Civil Judge must be set aside. Nevertheless, the order passed by the learned Civil Judge for recovering the Court-fees from the plaintiff through the Collector of Poona shall stand. Mr. Singhvi for defendant No. 1 company and Mr. Chitnis for defendant No. 2 did not press for costs. | 1[ds]12 ) DR. Grant in his evidence stated that on examination he found that Gopal was suffering from bacteraemia Dr. Grant got several pathological tests made in the case. He found that there was rash and red pigmentation on the body of Gopal. In his opinion, the rash could have been due to several conditions, such as bacteraemia,son syndrome viraemia and many other causes. Gopal was in the Nursing Home of Dr, Grant from december 26 to December 28, 1961 as seen by the evidence of Dr. Grant and the case papers produced by him. As the relatives of Gopal were unable to pay the charges of Dr. Grants nursing Home , Dr. Grant discharged him on December 29, 1961 with a note for being given to the authorities in the Sassoon Hospital where Dr. Grants Nursing Home Dr. Grant discharged him on December 29, 1961 with a note for being given to the authorities in the Sassoon Hospital where Dr. Grant was honorary physician and Cardiologist since 1947. He gave the note to remove the patient to the ward assigned to him as the honorary physician and cardiologist since 1947. He gave the note to remove the patient to the ward assigned to him as the honorary of the hospital and of B. J. Medical patient : was improving when he was in his Nursing Home and nobody suggested to him that the patient was suffering from smallpox and there was no epidemic of small pox and there was no epidemic of smallpox and there was no epidemic of smallpox and there was no epidemic of smallpox prevailing in Poona at that time after Gopals removal from his Nursing Home, Dr. Grant never received information or intimation from any hospital that the patient had on attack of smallpox( 13 ) WE are of opinion, having regard to the evidence of Dr. Grant, that Dr. Shaikh Suleman had done all that he could do far Gopal and there was no responsibility on him to look after the patient after he was removed to the Sasoon26 ) IT is, therefore, clear that in any action for negligence against a doctor, as in any other action for negligence, the plaintiff has to prove: (1) that the defendant was under a duty to take a reasonabel care towards the plaintiff to avoid the damage complained of or not to cause damage to the plaintiff by failure to use reasonabel care: (2) that there was a breach of duty on the part of the defendant and (3) that the breach of duty was the legal cause of the damage complained of and such damage was reasonably foreseeable.( 27 ) IT is in the light of the above settled principles governing medical men that we have to decide whether defendant No. 2, in the facts and circumstances of the present case, was negligent. The evidence referred to above of Dr. Gupchup and Dr. Grant and the conditions of employment of defendant No. 2 are most relevant in this connection. The learned Civil Judge disbelieved the uncorroborated allegations made by the plaintiff and her son Shankar that the deceased Gopal was treated by defendant No. 2 as a V. D. patient. The case papers are before the court. Dr. Grant is one of the renowned doctors in Poona, who has been running a busy nursing Home and who is an Honorary to B. J. Medical College and Sassoon Hospital. Even he could not arrive at a clinical finding with regard to the disease from which Gopal was suffering without a detailed pathological test of Gopal. The learned Civil Judge appears to have come to the conclusion that Dr. Shaikh Suleman was negligent, because he did not take proper care to examine Gopal or to find out the real cause of the ailment or to give proper treatment on the basis of the case paper of Gopal, which is at Ex. 81, and the note book maintained by Defendant no. 2, which is at Ex. 87, without due regard to the above principles governing the law of negligence and the proof of such30 ) THE plaintiff has led no expert evidence of any doctor to show that any think that Dr. Shaikh suleman did till this time amounted to the breach of any duty which he owned as a doctor to his patient Gopal. We do not think that the duty cast on the companys doctor in respect to the companys employees is any higher or lower than the duty of an average doctorate towards his patient. There is nothing in the case papers or in the evidence of Dr. Shaikh Sulemeant to show that he treated Gopal as a V. D. patient. No question was asked even to Dr. Gupchup, who was the plaintiffs witness as to whether any treatment given by Dr. Shaikh Suleman would have led to deterioration of the condition of Gopal, or had anything to do with the subsequent diagnosis of the disease asThere is some dispute as to whether Gopal had visited k Dr. Shaikh suleman on December 22, 23 and 24, 1961 and as to whether Shankar was right when he said that Gopal had gone to the doctor on December 22, 23 and 24, 1961 and as to whether Shankar was right when he said that Gopal had gone to the doctor on December 22, 1961 or December 23, 1961. December 24 was a Sunday and it is common ground that gopal had not gone to the doctor on that day. The case papers do not support the statement of Shankar. We do not find any reason to disbelieve Dr. Shaikh Suleman when he said that Gopal had not come to him on december 22, December 23 and December 24,31 ) THERE is also a dispute as to whether Shankar was attending Gopal and as to whether Dr. Shaikh Suleman told him that Gopal was suffering from syphilis as stated by Shankar, here again we are not inclined to believe Shankars evidence with regard to the oral discussion which he had with Dr. Shaikh Suleman having regard to the treatment which Dr. Shaikh Suleman gave to gopal, as shown by the case papers and his subsequent conduct in taking him to Dr. Grants nursing Home, where he was treated from December 26, 1961 to December 29, 1961 by Dr. Grant after pathological test for becteraemia. We do not find anything negligent on the part of dr. Shaikh Suleman in advising his hospitalisation. According to Dr. Shaikh Suleman. Shasnkar suggested that the deceased shoudl be taken to Dr. Grant, assuring that he would meet the expenses. According to Dr. Shajkh Suleman, it was he who suggested that the deceased should be taken to Dr. Grants Nursing Home. Here again, we do not see any reason to disbelieve Dr. Shaikh Suleman and, in any event we do not see how by advising Schenkar to take Gopal to Dr. Grant Dr. Shaikh Sulemen can be held to be33 ) THERE is nothing to show that Shankar or anyone else informed Dr. Shaikh Suleman as to where Gopal was being treated after he was removed from Dr. Grants Nursing Home. We do not think that ea company doctor can be held responsible to a patient if he and his relatives do not care to contract him for advice. It must be, therefore, held that Dr. Shaikh Suleman was not responsible as to what happened to Gopal after he was removed from Dr. Grants Nursing Home. It is also impossible to hold that Dr. Shaikh Suleman could be responsible for anything that happened to the deceased while he was under the treatment of Dr. Grant in his Nursing Home from December 26 to December 29, 1961, when he was discharged. In fact Dr. Grant has categorically stated that he did not allow any outside doctor to see even the case papers of the patient or to interfere with his34 ) WE thus find no evidence whatsoever to show that from December 12. 1961, when Gopal saw. Dr. Shaikh Suleman, according to Dr Shaikh Suleman, till Gopals death, anything has been established against Dr. Shaikh Suleman which can be said to be unreasonable or incompetent conduct on his part in the diagnosis and treatment and care of Gopal. The very fact that Dr. Grant, who is an M. D. F. C. P. S. with 20 years experience and an Honorary to Sassoon Hospital and B. J. Medical College as the Honorarv Physician and Cardiologist since 1947, was not able to diagnose the disease of Gopal asshows that Dr. Shaikh Suleman, who is a general practitioner and a company doctor, cannot be blamed for the error, if any, in his diagnosis of the disease of35 ) MOREOVER, the plaintiff has not led any expert evidence to show that on or before December 25, 1961, any doctor of ordinary skill and competence could have diagnosed the disease of Gopal asor treated him for small pox. On the contrary the evidence given by Dr. Gupchup on the basis of the record relating to Gopal, shows that the type of small pox which unfortunately killed Gopal was haemorrhage small pox which according to Dr. Gupchup, who had experience for some years of the infectious diseases, is fatal. He even admitted that any treatment that was given in respect of such small pox patients did not improve the patients. he also admitted that he had not applied any pathological test for confirming his diagnosis, because the pathological test was not within easy reach for him. he agreed with the grew expressed in Dickson on1962 Edition, that in some patient the fulminating or haemorrhagewas so overwhelming that it may occur within 24 to 36 hours with no outward manifestations at all and that appearance are very indefinite with no findings on which to base a certain diagnosis. There was admittedly no epidemic of small pox in December 1961 in Poona,. It is, therefore, quite possibel that neither Dr. Shaikh Suleman nor Dr. Grant could suspect that Gopal, who had already some previous vaccinations,. could be suffering from small pox because Gopal was in fact not suffering fromIt may be that the fulminating smallpox suddenly appeared on december 29, 1961 after the discharge of Gopal from Dr. Grants Nursing Home. In any event, it can never k be said that any defect or any error in the treatment or diagnosis of Dr. Shaikh suleman had led to any deterioration of the health of Gopal or to the appearance of the fulminatingsmallpox which killedhim. We do not think that in the absence of some expert evidence to show that there was something wrong in the treatment given by Dr. Shanith Suleman on December 25, 1961 and earlier, it is open to the Court to hold that he was guilty of negligence in examining , diagnosing or treating Gopal as long as Gopal was under his care. The plaintiff has also not proved by any evidence on record that the death of Gopal was caused by anything that was done or omitted to be done by Dr. Shaikh Suleman. In the absence of such proof, even assuming that there were some negligence, the plaintiff cannot39 ) IN para. 11 of the judgment, the learned Civil Judge has blamed Dr. Shaikh for not consulting Dr. Grant till late in the evening of December 25, 1961 and for not changing the treatment. though his treatment did not bring about improvement in the condition of Gopal. The learned Judge, in our opinion, was wholly wrong in coming to the conclusion that the treatment which Dr. Shaikh Suleman gave to the patient required to be changed in the facts and circumstances of the case. The only medical witness examined by the plaintiff. Dr. Gupchup, was not asked any question on behalf of the plaintiff as to whether there was anything wrong in the treatment given by Dr. Shaikh Suleman. Dr. Shaikh Suleman maintained that the treatment which he gave was the proper treatment. No question was asked to him as to whether any change was necessary during his treatment. The case papers do not show that Gopal had gone to Dr. Shaiokh Suleman on December 22, and December 23, 1961. It is common ground that he did not go on the 24th, which was a Sunday. In these circumstances, when could Dr. Shaikh Suleman consider the change of any treatment The learned Judge was not justified in holding that merely because Dr. Shaikh Sulemen stated that "after careful examination, he noticed rash on the body of Gopal". meant that he had never carefully examined the patient earlier. That, in our opinion, is not at all fair to a medical mans who says in fact on oath that he had examined and produced the case papers to show that he had started the treatment for the patient. The learned Judge was also wrong in assuming without any basis, that he did not care to know what the disease was, although the treatment which was given by Dr. Shaikh Suleman was of high fever and constipation and he said on oath before the Court that he treats Gopal as having infectious fever and this was supported by the evidence of Dr. Grant who said that Dr. Shaikh Suleman had told him that Gopal was suffering from40 ) THE learned judge has blamed Dr. Shaikh Suleman for not watching the progress or regress of his treatment right from December 12, 1961. The learned Judge was not justified in holding that his treatment was wrong merely because on December 25, 1961, the patient appeared before the doctor with high fever and constipation. It is difficult to understand how the learned Judge could come to the conclusion that merely because Dr. Shaikh gave Dicrysticin injection and subamycin capsules, that the line of treatment required to be changed. There was no evidence on record from which the learned Judge could come a such a41 ) AS stated in the passage from the judgment of Lord Goddard quoted above, it is not for the court o sit in judgment over the treatment which the doctor had given. The doctor had a discretion. It was for the plaintiff to establish by expert evidence that in the circumstances, the doctor should have changed his treatment before the learned Judge could infer that there was something wrong with the treatment. As far as we can infer from the treatment of Dicrvsticin and subamycin we must say that that was considered to be the normal treatment for some years for high fevers. In any event, there is nothing on the record to show that the streptonvicin and penicillin drugs or Subamvcin and penicillin drugs or Subamvcin drugs, which were given for some years to patients, would lead to any deterioration of the condition of the patient. The learned Judge, in our opinion, jumped to the conclusion, that Mr. Shaikh Suleman had acted in a careless manner in treating the patient right from the beginning. without any foundation in the42 ) THE evidence on record, on the contrary, shows that whenever Gopal came to Dr. Shaikh suleman, he gave all treatment which ordinarily a reasonable medical practitioner would give in 1961. It may be that in 1965, when the suit was heard, the treatment might have been different. But, as observed by Lord Denning in one case, it is not possibel to judge the treatment given by dr. Shaikh Suleman in the year 1961 with the medical spectacles of 1965 or later years. We have gone through the entire evidence carefully. We have seen that case papers and we find no reason whatsoever to support the finding of the learned Civil Judge that Dr. Shaikh Suleman was careless in examining, diagnosing or treating Gopal as long as he was under his care and43 ) THE learned Judge in para 12 of his judgment has blamed Dr. Shaikh Suleman (1) for not giving proper history of the patient to Dr. Grant. (2) for not foreseeing the adverse effects of wrong treatment and (3) for trying to whitewash the defects his treatment by describing the disease as ineffective fever. We find no basis for any of these conclusions The learned Judge has relied on a minor discrepancy between the evidence of Dr. Shaikh Suleman and Dr. Grant, with regard to the giving of the history of Gopal to Dr. Grant, for holding that Dr. Shaikh Suleman did not give the history of the patient to Dr. Grant, although both of them say that the history was given. Dr. Shaikh Suleman said that he had personally given the history to Dr. Grant. Dr. Grant said that it was given on the phone. The learned Judge, in our opinion, was not justified in giving importance to this discrepancy having regard to the fact that the two doctors, who are both busy, were giving evidence about the event which had happened nearly four years earlier and if they did not give identical evidence with regarded to the manner in which Dr. Grant was contacted and told by Dr. Shaikh Suleman it was not proper to infer that Dr. Shaikh Suleman could not have given the history of the patient to Dr. Grant before Dr. Grant would commence the treatment though, normally, a doctor, who sends or takes a patient to a consultant, is bond to give such history as the consultant would44 ) MOREOVER, Dr. Grant himself said that the condition and symptoms of Gopal required a through investigation and he did it after several pathological tests to find out the case of the rash and red pigmentation on the body of the patient. He also stated on oath before the Court that the rash could have been due to the several conditions, such as, bacteraemia, Stevens Johnson syndorme. viraemia and many other cause. If that was the position of the patient, it was wrong on the part of the learned trial Judge to blame Dr. Shaikh Suleman merely because he did not give full details of the history to Dr. Grant, who was going to make a thorough investigation by pathological45 ) THE learned Civil Judge, in our view, was wholly wrong in coming to the conclusion that Dr. Grant stated at the trial that he approved of the treatment given by Dr. Shaikh Suleman only to support a fellow doctor, "as Dr. Grant had a soft corner for Dr. Shaikh and had a genuine and sincere desire to help him in his times of difficulty even by making his own position somewhat risky in the Court of law". We think that these remarks of the learned Judge were uncalled for, particularly when the learned Judge himself has observed that Dr. Grant is a very busy and learned doctor and a leading practitioner of Poona and no allegations were made by the plaintiff against Dr. Grant in this plaint and no question was put to Dr. Grant that he had any reason to support Dr. Shaikh Suleman without any regard for46 ) THE inference of the learned Judge that the treatment given by Dr. Shaikh was wrong is as already stated, unfounded and baseless. The further inference of the learned Judge that the serious turn in the case and illness of Gopal must have been due to the treatment given by defendant no. 2, is not only baseless and wholly unscientific but shows a misconception on the part of the learned Judge about the nature of smallpox. There was no evidence of any doctor before the learned Judge to show that smallpox could be caused by any of the medicine which dr. Shaihkh gave to Gopal. Dr. Guphup had stated before the learned Judge that the smallpox which had affected Gopal was haemorrhage smallpox or fulminating smallpox for which there was no known remedy in the science of medicine Vaccination being only the best means of preventine spread of infection though not always the sure means. No medical scientist in the world has yet discovered the cause of smallpox virus: and it is astounding that the learned Judge jumped to the conclusion that the treatment given by Dr. Shaikh Suleman was responsible for the deterioration of the condition of the patient.( 47 ) IT was also perverse on the part of the learned Judge to have come to the conclusion that merely because Dr. Shaikh Suleman said inthat he treated Gopal as suffering from infectious fever and he could not say what type of fever it was, he was trying to white wash his wrong treatment. The learned Judge appears to have had some misapprehension about the nature of infectious fever, which is an expression used at times by doctors in connection with certain kinds of fevers which could nt be specifically diagnosed for some time. In the present case, even Dr. Grant who was certainly an expiration his own line, could not arrive at his conclusions without several pathological tests If, in these circumstances. Dr. Shaikh Suleman stated that it was infectious fever, it was wrong on the part of the learned Judge to hold that he had done so tohis won wrong48 ) IN para 13 of his judgment, the learned Civil Judge has blamed Dr. Shaikh Suleman (1) for not caring to inquire about the health and progress of the patient while the patient was in Dr. Grants Nursing Home (2) for the effort of Dr. Grant to rescue Dr. Shaikh Suleman by stating that it was his practice not to allow anybody to read the case papers, (3) for not seeing Gopal on December 28 and December 29, though Dr. Shaikh Suleman went to the Nursing Home, and for merely getting information from the staff of the Nursing Home with regard to his progress. (4)for trying tothe whole affairs by stating that as Gopal was not under his treatment since the time he was removed to Dr. Grants Nursing Home, he was not responsible for whatever happened to him and (5) for denying all responsibility to the patient after removal of gopal to Dr. Grants Nursing49 ) WE do not think that any of these reasons given by the learned Judge can be considered sufficient to support an inference of negligence on the part of Dr. Shaikh Suleman. In the first place, although the learned Judge has shown great regard for Dr. Grant, he has disbelieved Dr. Grant without any adequate reason when Dr. Grant told in the Court that he never allowed any outside doctor to see the case papers or to interfere with his treatment. Dr. Grant is a doctor high up in the hierarchy of medical profession. Dr. Shaikh Suleman is an L. C. P. S. general medical practitioner. It was wholly wrong on the part of the learned Civil Judge to disbelieve Dr. Grant when he said that it was his practice never to allow any other doctor to see the case papers or to interfere with the treatment in his Nursing50 ) ALL the other reasons given by the learned Civil Judge, therefore, for holding Dr. Shaikh suleman responsible for negligence and carelessness must be considered as totally irrelevant. We do not think that a company doctor has the duty to visit a hospitalised employee, who is being treated by another doctor. There was nothing unusual if Dr. Shaikh Sule man went to the nursing Home and inquired from the staff about the progress of the patient without seeing the patient himself or the temperature chart. It was not necessary for him to see the patient in the nursing Home. No such duty is cast on the company doctor under the terms of his appointment. The learned Judge erred in holding that Dr. Shaikh Suleman was wrong or careless or negligent in denying his liabilities after Gopal was removed to the Nursing Home of Dr.51 ) IN para. 14 of his judgment the learned Judge has blamed Dr. Shajkh (1) for not caring even to ascertain the proximate case of the death of Gopal and (2) for stating that Shankar and Gopal went without informing him to Navadus Infectious Diseases Hospital and to the Cantonment general Hospital. The learned Judge hassane person in general and a person like Shankar who has already spent a lot of amount over his brother in particular, would voluntarily choose to go to such a hospital and the defendants contentions in this behalf are as rediculous as anything and cannot be believed even for a moment. Apart from this, Dr. Shaikh is the Medical Officer of the Defendant No. 1 company and cannot avoid his liability and save his skin simply by saying that he is not responsible because the patient was taken to these hospitals without his knowledge of permission. It cannot also be believed that Gopal was removed or rather decided to be removed to the Session Hospital without the knowledge of Defendant No. 2 and in that case, it is idle for defendant No. 2 to say that his responsibility was over soon after Gopal was removed to the nursing Home or anywherereasoning adopted by the learned Judge, in our opinion, is wholly inconsistent with the principles governing the liability of medical men towards their patient. which have been enunciated above. We do not find any term in the medical scheme of the company which requires the companys doctor to follow the patient irrespective of whether the patient is removed from one hospital to the other without consulting him or without his advice. There is also nothing to show that even if he advised the removal of the patient to a particular hospital, he was required to attend to the patient in the hospital, even though he had nothing to do with the hospital and he had nothing to do with the hospital and he had no control over the patient in the52 ) SHANKAR himself in his evidence has not stated that he took Gopal from Session Hospital to nayadus Infectious Diseases Hospital and form Nayadus Infectious Diseases Hospital to the cantonment General Hospital after informing defendant No. 2. He has clearly admitted in his evidence that since after he left the Nursing Home of Dr. Grant, he could not meet defendant No. 2 till January 4, 1962. The learned Judge was, therefore, wholly unmindful of this admission when coming to the conclusion that it was the duty of Dr. Shaikh Suleman to go and inquire of the patient wherever he was taken , even though neither the patient nor his brother created to inform him about the patients removal to Nayadus Infectious Diseases Hospital and the contonment General Hospital.( 53 ) THERE was nothing unusual if a companys doctor conducted himself fin such a way if the employee or his relatives do not care to inform him about the treatment which they pursue without consulting him. The learned Judge was also wrong in drawing an adverse inference against Dr. Shaikh Suleman merely because Dr. Shaikh Suleman did not come to know about the cause of the death of Gopal in the Cantonment General Hospital on December 31. 1961. It was admitted by Dr. Gupchup that he did not inform Dr. Grant even though it was his duty to inform him. Dr. gupchup did not inform Dr. Shaikh Suleman about the cause of death. Dr. Grant in his evidence maintained that the deceased might not have died of smallpox. Dr. Gupchup admitted that the pathological tests which appear to be the only real scientific tests for finding out smallpox were not available to him. In these circumstances, if a medical man like Dr. Shaikh suleman does not save that he knew about the proximate cause of death, it cannot be considered to be negligence on his54 ) IN para. 15 of his judgment, the learned Civil Judge has again blamed Dr. Shaikh Suleman because; (1) Dr. Gupchup stated that on December 29. 1961, when the patient was brought to the cantonment General Hospital at 6. 30. Gopal wassuffering from smallpox and his condition was serious and the rash appeared in such a case on the third day invesicular type of smallpox and this showed that Dr. Shaikh was careless in not diagnosing the disease of Gopal as smallpox. (2) Dr. Dongare of Nayadus Infectious Diseases Hospital produced the case papers which also showed that the provisional diagnosis was smallpox. (3) Dr. Shaikh Suleman therefore ought to have been able to find out that the disease from which Gopal was suffering was smallpox and (4) Dr. Shaikh Suleman tempered with the case papers and fabricated false evidence to support his version and thereby exposed himself to be a person not mindful about the55 ) THESE reasons are somewhat inconsistent with the earlier reasoning of the learned Judge that a doctor cannot be blamed for a mistake in diagnosis. What is more, the learned Judge went to the extent of saying in a round about way that Dr. Grant was also careless in not finding out what dr. Dongare and Dr. Gupchup could easily find out, namely, that Gopal was suffering from smallpox on December 29, 1961. We must say that this approach adopted by the learned Judge to the two doctors cannot be consistered to be58 ) HAVING regard to this evidence, the Court would ordinarily hesistate to question the diagnosis made by Dr. Shaikh Suleman and Dr. Grant. It was admitted by Dr. Gupchuo that no postmortem examination of Gopal was made. Dr. Gupchup has even admitted in the cross examination: "it is the characteristic of smallpox that rash appears after 72 hours. The rash in all they varieties of smallpox is similar. In the initial stage the rash is not vesicular. I have not heard that preliminary rash also appears in some cases. When I examined the patient I found that there was only one type of rash on his person and it was vesicular. Such rash appears in other discuses also. They are chickenpox. Vesicular rash does not appear in toxic scarlet fever. I have not come across any case of German Measiles, Subamycin belongs to an antiseptic group of drugs. Such a drug could be administered in the case of present nature". Although it is the duty of the Court to judge the negligence of doctors, it is not open to the Court to ignore the evidence on the reocrd and jump to the conclusion without any basis that Dr. Shaikh Suleman or Dr. Grant ought to have been able to find out that Gopal was suffering from smallpox in the facts and circumstances of the59 ) SO far as the finding of the learned Civil Judge in regard to the tampering of the case papers and fabricating false evidence is concerned, we think that it is based entirely on the misreading of the evidence and misapprehension of the duties of a doctor when maintaining record like Ex. 37. Ex. 87 is a note book, which appears to have been written in different hands on different page. The entry in regard to December 25, 1961, December 20, 1961, December 21, 1961, december 25 , 1961, and shows the treatment which he have to him and the complaint a which he ascertained from him. The following appears to have been written in different hand below the entries made by Dr. Shaikh Suleman on December 25,constipation for four days came at 11. 30 a. m. with 104 temp. F. IN the evening I consulted alone with Dr. Grant who advised admissionas I saw rash on the body, his brother took letter from me as he did not want to go elsewhere except Dr. Grant for admission. He was against admission is Sassoonis difficult to understand why these particular entries are regarded by the learned Judge as false and fabricated when it is proved by overwhelming evidence and admitted by Shankar himself that the deceased was kept in the dispensary by Dr. Shaikh Suleman and removed to the nursing Home of Dr. Grant next day, which he could not have done unless he had discussed it with Dr. Grant.( 60 ) THE reason given by the learned Judge for holding that the entries were false and were manipulated afterwards is that all the entries must have been made by Dr. Shaikh Suleman after he came to know that something unusual had happened and the plaintiff was thinking of taking some action in this behalf This surmise on the part of the learned Judges entirely base less. Similarly in Ex. 81, the case paper, although the front page is entirely written by Dr. Shaikh and even on the backside, the entries are made with regard to the treatment by Dr. Shaikh Suleman, some entries are made in acolumn of the case paper not by him. Dr. Shaikh Suleman stated in the course of histhat they were made by his compounded. It is difficult to understand how this alone could lead to an inference that Dr. Shaikh Suleman manipulated and fabricated all these entries with a view to protect himself or to make out a false case to repel the claim of the61 ) IN any event, these entries had nothing to falsify the actual treatment and care which Dr. Shaikh Suleman was expected to give or take in respected of Gopal. These entries could not have led to the deterioration of the health of the patient. As already stated above, in the absence of anything to show that the treatment which Dr. Shaikh Suleman gave to the patient was so defective that a doctor with ordinary skill and competence would not reasonably give such treatment, it was wrong to proceed on the footing that these case papers were fabricated or manipulated by Dr. Shaikh Suleman to protect himself. In our opinion, none of the reasons given by the learned Judge in para 15 is, therefore, relevant or sufficient to draw an inference that Dr. Shaikh Sulemanor Dr. Grant was in any manner negligent in their62 ) IN para, 16 of his judgment the learned Judge, after referring to the passages of Lord nathans book on Medical Negligence, summed up the findings asplaintiff has led oral evidence of the doctors who have actually treated the case and given their definite opinion as well as the actual state of affairs seen by them. The documentary evidence produced on behalf of both the Defendants is more than enough to give a sound support to the case of the plaintiff. The evidence of Dr. Grant appears to have possibly been given by defendant No. 1 mainly with the idea of showing that Dr. Grant has got no concern whatsoever with Defendant No. 1 but at the same time he could not help harming the case of Defendant No. 2 in spite of his honest efforts to save his skin if possible. I have already discussed above the evidence of Dr. Grant as well as the case papers produced by him and it is easy to find that the condition of Gopal was serious on admission. The relevant notices in exhibit 75/1 are taken not by Dr. Grant but by his assistant viz. Dr. Sardesai but the fact remains that Dr. Shaikh had treated Gopal as a patient of flu and he was also brought to him as a patient of flu but on admission, Dr. Grant did not find Gopal as a patient of flu, his diagnosis was, however, a s can be seen from Exhibit 75/3. that Gopal was suffering from acute secondary thrombosis site pririce purpurae infections. Thus, it may be seen that the diagnosis made as well as the line of treatment given by Dr. Shakiikh was neither confirmed nor continued by Dr. Grant and as such his evidence does not help the case or case of Defendant No. 2. On the other hand the case papers produced by Dr. Grant go to show that the case had taken a serious turn and reached an advanced stage and Dr. Shaikh was cognizant of the fact that it had gone out of his control. Similarly, the circumstantial evidence including the conduct of Dr. Shaikh, with regard to the treatment of gopal before as well as after he was removed to and from Dr. Grants Nursing Home, already discussed above, definitely supports the caws of the Plaintiff. All this evidence and circumstances taken together have got the cumulative effect of leading us to the undoubted and irresistible conclusion that Defendant No. 2 was culpably negligent and utterly careless in treating the deceased Gopal and there has certainly been a breach of duty on the part of the companys Doctor".( 63 ) FRO the reasons stated above, the entire reasoning of the learned Judge and the above findings are baseless and unjustified having regard to the nature and symptoms of the disease from which Gopal was suffering and the evidence on record Besides, as already stated above, there is no evidence at all to show that the learned Judge applied his mind to the necessity for the plaintiff to prove, besides negligence the fact that the deceased deteriorated in health or died as a result of that negligence Dr. Gupchups evidence, as discussed above, completely negatives such a fact, as he admitted that no medical treatment exists for haemorrhage cause of the sad and unfortunate death of the deceased64 ) MR. Singhavi has not addressed any arguments before us regarding the liability of defendant no. 2. But we are inclined to agree with the learned Civil Judge that if defendant No. 2 as a Company doctor, was negligent in the discharge of his duties, then defendant No. 1 company also would be liable. Mr. Singahvi however fairly stated that he conceded that as medical officer in the part time service of the company defendant No. 2 was in the employment of defendant No. 1 He wanted us not to deal with the question of the liability of the company in view of our conclusion that defendant No. 2 was not negligent. But we do not think that the question should be left open when this appeal is being heard nine years after it was filed. If we were to come to the conclusion that defendant No. 2 was negligent we would have had no hesitation in holding defendant No. 1 liable for it along with defendant No.too, the question cannot survive in view of our finding that defendant No. 2 was not negligent in the discharge of his duties as a medical officer. Nevertheless the very fact that the plaintiff is still surviving, though the suit was pending for some years in the trial Court and the above appeal is pending in this Court for nine years and her mother died at the age of 80 years, can be a sufficient basis for agreeing with the learned Civil Judge in holding that the longevity of the life which should be given to the plaintiff for the purpose of the suit can be reasonably fixed at 80. There is also nothing unreasonable in the assumption made by the learned civil Judge that if Gopal were to live, he would have sent to the plaintiff, who is ordinarily residing at Kerala with a daughter a sum of Rs. 100On that basis, if at all we were to agree with the learned Judge in holding that defendant No. 2 was guilty of negligence in the discharge of his duties the amount of compensation awarded by him would have been considered to be66 ) HOWEVER, as the plaintiff has failed to prove actionable negligence on the part of defendant no. 2 her suit must be dismissed and the decree passed by the learned Civil Judge must be set aside. Nevertheless, the order passed by the learned Civil Judge for recovering thefrom the plaintiff through the Collector of Poona shall stand. Mr. Singhvi for defendant No. 1 company and Mr. Chitnis for defendant No. 2 did not press for costs. | 1 | 16,845 | 7,164 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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more than enough to give a sound support to the case of the plaintiff. The evidence of Dr. Grant appears to have possibly been given by defendant No. 1 mainly with the idea of showing that Dr. Grant has got no concern whatsoever with Defendant No. 1 but at the same time he could not help harming the case of Defendant No. 2 in spite of his honest efforts to save his skin if possible. I have already discussed above the evidence of Dr. Grant as well as the case papers produced by him and it is easy to find that the condition of Gopal was serious on admission. The relevant notices in exhibit 75/1 are taken not by Dr. Grant but by his assistant viz. Dr. Sardesai but the fact remains that Dr. Shaikh had treated Gopal as a patient of flu and he was also brought to him as a patient of flu but on admission, Dr. Grant did not find Gopal as a patient of flu, his diagnosis was, however, a s can be seen from Exhibit 75/3. that Gopal was suffering from acute secondary thrombosis site pririce purpurae infections. Thus, it may be seen that the diagnosis made as well as the line of treatment given by Dr. Shakiikh was neither confirmed nor continued by Dr. Grant and as such his evidence does not help the case or case of Defendant No. 2. On the other hand the case papers produced by Dr. Grant go to show that the case had taken a serious turn and reached an advanced stage and Dr. Shaikh was cognizant of the fact that it had gone out of his control. Similarly, the circumstantial evidence including the conduct of Dr. Shaikh, with regard to the treatment of gopal before as well as after he was removed to and from Dr. Grants Nursing Home, already discussed above, definitely supports the caws of the Plaintiff. All this evidence and circumstances taken together have got the cumulative effect of leading us to the undoubted and irresistible conclusion that Defendant No. 2 was culpably negligent and utterly careless in treating the deceased Gopal and there has certainly been a breach of duty on the part of the companys Doctor".( 63 ) FRO the reasons stated above, the entire reasoning of the learned Judge and the above findings are baseless and unjustified having regard to the nature and symptoms of the disease from which Gopal was suffering and the evidence on record Besides, as already stated above, there is no evidence at all to show that the learned Judge applied his mind to the necessity for the plaintiff to prove, besides negligence the fact that the deceased deteriorated in health or died as a result of that negligence Dr. Gupchups evidence, as discussed above, completely negatives such a fact, as he admitted that no medical treatment exists for haemorrhage cause of the sad and unfortunate death of the deceased Gopal. ( 64 ) MR. Singhavi has not addressed any arguments before us regarding the liability of defendant no. 2. But we are inclined to agree with the learned Civil Judge that if defendant No. 2 as a Company doctor, was negligent in the discharge of his duties, then defendant No. 1 company also would be liable. Mr. Singahvi however fairly stated that he conceded that as medical officer in the part time service of the company defendant No. 2 was in the employment of defendant No. 1 He wanted us not to deal with the question of the liability of the company in view of our conclusion that defendant No. 2 was not negligent. But we do not think that the question should be left open when this appeal is being heard nine years after it was filed. If we were to come to the conclusion that defendant No. 2 was negligent we would have had no hesitation in holding defendant No. 1 liable for it along with defendant No. 2( 65 ) MR. Singhvi, however, addressed an argument that the learned Civil Judge, in any event, erred in taking the lifetime of the plaintiff as 80 years and awarding compensation on the basis of rs. 100/- p. m. being sent by the deceased Gopal to her, when the salary of Gopal was only rs. 105/- p. m. Here too, the question cannot survive in view of our finding that defendant No. 2 was not negligent in the discharge of his duties as a medical officer. Nevertheless the very fact that the plaintiff is still surviving, though the suit was pending for some years in the trial Court and the above appeal is pending in this Court for nine years and her mother died at the age of 80 years, can be a sufficient basis for agreeing with the learned Civil Judge in holding that the longevity of the life which should be given to the plaintiff for the purpose of the suit can be reasonably fixed at 80. There is also nothing unreasonable in the assumption made by the learned civil Judge that if Gopal were to live, he would have sent to the plaintiff, who is ordinarily residing at Kerala with a daughter a sum of Rs. 100 p. m. On that basis, if at all we were to agree with the learned Judge in holding that defendant No. 2 was guilty of negligence in the discharge of his duties the amount of compensation awarded by him would have been considered to be reasonable. ( 66 ) HOWEVER, as the plaintiff has failed to prove actionable negligence on the part of defendant no. 2 her suit must be dismissed and the decree passed by the learned Civil Judge must be set aside. Nevertheless, the order passed by the learned Civil Judge for recovering the Court-fees from the plaintiff through the Collector of Poona shall stand. Mr. Singhvi for defendant No. 1 company and Mr. Chitnis for defendant No. 2 did not press for costs.
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manner negligent in their62 ) IN para, 16 of his judgment the learned Judge, after referring to the passages of Lord nathans book on Medical Negligence, summed up the findings asplaintiff has led oral evidence of the doctors who have actually treated the case and given their definite opinion as well as the actual state of affairs seen by them. The documentary evidence produced on behalf of both the Defendants is more than enough to give a sound support to the case of the plaintiff. The evidence of Dr. Grant appears to have possibly been given by defendant No. 1 mainly with the idea of showing that Dr. Grant has got no concern whatsoever with Defendant No. 1 but at the same time he could not help harming the case of Defendant No. 2 in spite of his honest efforts to save his skin if possible. I have already discussed above the evidence of Dr. Grant as well as the case papers produced by him and it is easy to find that the condition of Gopal was serious on admission. The relevant notices in exhibit 75/1 are taken not by Dr. Grant but by his assistant viz. Dr. Sardesai but the fact remains that Dr. Shaikh had treated Gopal as a patient of flu and he was also brought to him as a patient of flu but on admission, Dr. Grant did not find Gopal as a patient of flu, his diagnosis was, however, a s can be seen from Exhibit 75/3. that Gopal was suffering from acute secondary thrombosis site pririce purpurae infections. Thus, it may be seen that the diagnosis made as well as the line of treatment given by Dr. Shakiikh was neither confirmed nor continued by Dr. Grant and as such his evidence does not help the case or case of Defendant No. 2. On the other hand the case papers produced by Dr. Grant go to show that the case had taken a serious turn and reached an advanced stage and Dr. Shaikh was cognizant of the fact that it had gone out of his control. Similarly, the circumstantial evidence including the conduct of Dr. Shaikh, with regard to the treatment of gopal before as well as after he was removed to and from Dr. Grants Nursing Home, already discussed above, definitely supports the caws of the Plaintiff. All this evidence and circumstances taken together have got the cumulative effect of leading us to the undoubted and irresistible conclusion that Defendant No. 2 was culpably negligent and utterly careless in treating the deceased Gopal and there has certainly been a breach of duty on the part of the companys Doctor".( 63 ) FRO the reasons stated above, the entire reasoning of the learned Judge and the above findings are baseless and unjustified having regard to the nature and symptoms of the disease from which Gopal was suffering and the evidence on record Besides, as already stated above, there is no evidence at all to show that the learned Judge applied his mind to the necessity for the plaintiff to prove, besides negligence the fact that the deceased deteriorated in health or died as a result of that negligence Dr. Gupchups evidence, as discussed above, completely negatives such a fact, as he admitted that no medical treatment exists for haemorrhage cause of the sad and unfortunate death of the deceased64 ) MR. Singhavi has not addressed any arguments before us regarding the liability of defendant no. 2. But we are inclined to agree with the learned Civil Judge that if defendant No. 2 as a Company doctor, was negligent in the discharge of his duties, then defendant No. 1 company also would be liable. Mr. Singahvi however fairly stated that he conceded that as medical officer in the part time service of the company defendant No. 2 was in the employment of defendant No. 1 He wanted us not to deal with the question of the liability of the company in view of our conclusion that defendant No. 2 was not negligent. But we do not think that the question should be left open when this appeal is being heard nine years after it was filed. If we were to come to the conclusion that defendant No. 2 was negligent we would have had no hesitation in holding defendant No. 1 liable for it along with defendant No.too, the question cannot survive in view of our finding that defendant No. 2 was not negligent in the discharge of his duties as a medical officer. Nevertheless the very fact that the plaintiff is still surviving, though the suit was pending for some years in the trial Court and the above appeal is pending in this Court for nine years and her mother died at the age of 80 years, can be a sufficient basis for agreeing with the learned Civil Judge in holding that the longevity of the life which should be given to the plaintiff for the purpose of the suit can be reasonably fixed at 80. There is also nothing unreasonable in the assumption made by the learned civil Judge that if Gopal were to live, he would have sent to the plaintiff, who is ordinarily residing at Kerala with a daughter a sum of Rs. 100On that basis, if at all we were to agree with the learned Judge in holding that defendant No. 2 was guilty of negligence in the discharge of his duties the amount of compensation awarded by him would have been considered to be66 ) HOWEVER, as the plaintiff has failed to prove actionable negligence on the part of defendant no. 2 her suit must be dismissed and the decree passed by the learned Civil Judge must be set aside. Nevertheless, the order passed by the learned Civil Judge for recovering thefrom the plaintiff through the Collector of Poona shall stand. Mr. Singhvi for defendant No. 1 company and Mr. Chitnis for defendant No. 2 did not press for costs.
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RAMJI SINGH PATEL Vs. GYAN CHANDRA JAISWAL | between the two houses.ii. The respondent has a business of Flour Mill, Oil Mill and expeller, Ice factory etc. and he uses the said machines on diesel.iii. The respondent started his business in 1990 but at that time his machines were operated on electricity.iv. In 2003 the respondent started using expeller machine etc. which was operated on diesel which produced a lot of vibrations and air and noise pollution.v. Because of a vibrations caused by the said machines the wall on the appellants side cracked at many places.vi. The running of his business is detrimental to the health of the appellant and his family.vii. The oral evidences of the witnesses made it clear that the machines used by the respondent caused vibrations and emitted air and noise pollution.viii. It was admitted by the respondent that the machines caused air and noise pollution.ix. The running of said business came under the ambit of private nuisance and that such activities should not be carried out in residential areas as it is detrimental to physical and mental health of people at large.x. The defence of volunti non fit injuria does not sustain as when the appellant started living in this house in 1990 the respondent was operating the machines on electricity and it was in 2003 that the respondent started operating the machines on diesel which caused vibrations and pollution.xi. The appellant is entitled to perpetual injunction against the respondent.?9. Being aggrieved by the judgment and decree in Civil Appeal No. 206/2012 and 207/2012 passed by the Additional District Judge, Allahabad, the respondent filed Second Appeals Nos. 622/2013 and 623/2013 before the Allahabad High Court. The High Court has been pleased to allow both the Second Appeals and set aside judgments and decree dated 03.10.2012 passed by the Civil Judge (Junior Division), Sakri, Allahabad and 25.02.2013 passed by the Additional District Judge, Court No. 2, Allahabad and also dismissed Original Suit No. 26/2004.10. A perusal of the judgment of the High Court shows that it is not tinkered with any of the findings recorded by the Trial Court and affirmed by the first appellate court. On the contrary, the substantial question of law which was formulated by the High Court pertains to the limitation in filing the suit which reads as under:?Whether the suit in question was barred by time inasmcuh as prayer sought in the plaint shows that cause of action arose in 1990 though the suit was filed in 2004 and admittedly the period of limitation is only three years.?11. According to the High Court the evidence on record shows that the Atta Chakki was installed initially in 1990, but no inconvenience was felt by the appellant herein and, therefore, he did not make any complaint. The only explanation is that at that time the respondent was running the aforesaid machine with electricity which was not causing pollution or any inconvenience and since from the year 2003 the respondent started using diesel generator set (DG Set), the smoke and noise created by DG Set has caused serious air and other pollution. This explanation has not been found to be convincing by the High Court. Thus, influenced by the fact that the Atta Chakki was started in 1990 and the suit was filed 14 years thereafter, i.e. in the year 2004, it was held to be time barred.12. After hearing the learned counsel for the parties, we do not find ourselves in agreement with the approach of the High Court. It may be noted that in the first instance no such plea was taken up by the respondent in the written submissions filed by him to the suit which was filed by the plaintiff/appellant and no issue on limitation came to be casted. Obviously, in the absence of any such issue framed, the parties did not lead any evidence. No doubt, even in the absence of any specific issue of limitation, by virtue of Section 3 of the Limitation Act, power is cast on the Court to see whether the suit is within limitation or time barred. However, such a plea could have been taken by the respondent in the Second Appeal before the High Court only if the issue of limitation was raised as a pure question of law. In the instant case, we find it to be a mixed question of law and fact and, therefore, it could not have been entertained by the High Court for the first time in the second appeal filed by the respondent.13. That apart, even on merits we find blemish in the approach of the High Court. There are at least two reasons for that which are as under: a) The explanation given by the appellant was justified. He had categorically stated that nuisance started in operating the said Atta Chakki (Floor Mill) when the respondent had installed DG Set in the year 2003 as it emitted smoke thereby creating air pollution and had also started creating noise pollution. Therefore, the cause of action for filing the suit was the installation of DG Set which was installed in the year 2003. The suit was filed in the year 2004 and was, thus, well within time. b) Furthermore, we find that the High Court has taken a very myopic view of the matter. The findings of fact which were recorded by the courts below were clear to the effect that after the use of DG Set by the respondent and because of the vibration created by it and the machines run through it, cracks on the wall of the appellant side developed at many places. This has happened after 2003. Another categorical finding is that running of the business is detrimental to the health of the appellant and his family. Once there are categorical findings that the flour mill of the respondent is causing noise as well as air pollution, it would be a continuing cause of action. Such a grave consequence of running this mill should not have been ignored by the High Court. | 1[ds]12. After hearing the learned counsel for the parties, we do not find ourselves in agreement with the approach of the High Court. It may be noted that in the first instance no such plea was taken up by the respondent in the written submissions filed by him to the suit which was filed by the plaintiff/appellant and no issue on limitation came to be casted. Obviously, in the absence of any such issue framed, the parties did not lead any evidence. No doubt, even in the absence of any specific issue of limitation, by virtue of Section 3 of the Limitation Act, power is cast on the Court to see whether the suit is within limitation or time barred. However, such a plea could have been taken by the respondent in the Second Appeal before the High Court only if the issue of limitation was raised as a pure question of law. In the instant case, we find it to be a mixed question of law and fact and, therefore, it could not have been entertained by the High Court for the first time in the second appeal filed by the respondent.13. That apart, even on merits we find blemish in the approach of the High Court. There are at least two reasons for that which are as under: a) The explanation given by the appellant was justified. He had categorically stated that nuisance started in operating the said Atta Chakki (Floor Mill) when the respondent had installed DG Set in the year 2003 as it emitted smoke thereby creating air pollution and had also started creating noise pollution. Therefore, the cause of action for filing the suit was the installation of DG Set which was installed in the year 2003. The suit was filed in the year 2004 and was, thus, well within time. b) Furthermore, we find that the High Court has taken a very myopic view of the matter. The findings of fact which were recorded by the courts below were clear to the effect that after the use of DG Set by the respondent and because of the vibration created by it and the machines run through it, cracks on the wall of the appellant side developed at many places. This has happenedAnother categorical finding is that running of the business is detrimental to the health of the appellant and his family. Once there are categorical findings that the flour mill of the respondent is causing noise as well as air pollution, it would be a continuing cause of action. Such a grave consequence of running this mill should not have been ignored by the High Court. | 1 | 1,647 | 485 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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between the two houses.ii. The respondent has a business of Flour Mill, Oil Mill and expeller, Ice factory etc. and he uses the said machines on diesel.iii. The respondent started his business in 1990 but at that time his machines were operated on electricity.iv. In 2003 the respondent started using expeller machine etc. which was operated on diesel which produced a lot of vibrations and air and noise pollution.v. Because of a vibrations caused by the said machines the wall on the appellants side cracked at many places.vi. The running of his business is detrimental to the health of the appellant and his family.vii. The oral evidences of the witnesses made it clear that the machines used by the respondent caused vibrations and emitted air and noise pollution.viii. It was admitted by the respondent that the machines caused air and noise pollution.ix. The running of said business came under the ambit of private nuisance and that such activities should not be carried out in residential areas as it is detrimental to physical and mental health of people at large.x. The defence of volunti non fit injuria does not sustain as when the appellant started living in this house in 1990 the respondent was operating the machines on electricity and it was in 2003 that the respondent started operating the machines on diesel which caused vibrations and pollution.xi. The appellant is entitled to perpetual injunction against the respondent.?9. Being aggrieved by the judgment and decree in Civil Appeal No. 206/2012 and 207/2012 passed by the Additional District Judge, Allahabad, the respondent filed Second Appeals Nos. 622/2013 and 623/2013 before the Allahabad High Court. The High Court has been pleased to allow both the Second Appeals and set aside judgments and decree dated 03.10.2012 passed by the Civil Judge (Junior Division), Sakri, Allahabad and 25.02.2013 passed by the Additional District Judge, Court No. 2, Allahabad and also dismissed Original Suit No. 26/2004.10. A perusal of the judgment of the High Court shows that it is not tinkered with any of the findings recorded by the Trial Court and affirmed by the first appellate court. On the contrary, the substantial question of law which was formulated by the High Court pertains to the limitation in filing the suit which reads as under:?Whether the suit in question was barred by time inasmcuh as prayer sought in the plaint shows that cause of action arose in 1990 though the suit was filed in 2004 and admittedly the period of limitation is only three years.?11. According to the High Court the evidence on record shows that the Atta Chakki was installed initially in 1990, but no inconvenience was felt by the appellant herein and, therefore, he did not make any complaint. The only explanation is that at that time the respondent was running the aforesaid machine with electricity which was not causing pollution or any inconvenience and since from the year 2003 the respondent started using diesel generator set (DG Set), the smoke and noise created by DG Set has caused serious air and other pollution. This explanation has not been found to be convincing by the High Court. Thus, influenced by the fact that the Atta Chakki was started in 1990 and the suit was filed 14 years thereafter, i.e. in the year 2004, it was held to be time barred.12. After hearing the learned counsel for the parties, we do not find ourselves in agreement with the approach of the High Court. It may be noted that in the first instance no such plea was taken up by the respondent in the written submissions filed by him to the suit which was filed by the plaintiff/appellant and no issue on limitation came to be casted. Obviously, in the absence of any such issue framed, the parties did not lead any evidence. No doubt, even in the absence of any specific issue of limitation, by virtue of Section 3 of the Limitation Act, power is cast on the Court to see whether the suit is within limitation or time barred. However, such a plea could have been taken by the respondent in the Second Appeal before the High Court only if the issue of limitation was raised as a pure question of law. In the instant case, we find it to be a mixed question of law and fact and, therefore, it could not have been entertained by the High Court for the first time in the second appeal filed by the respondent.13. That apart, even on merits we find blemish in the approach of the High Court. There are at least two reasons for that which are as under: a) The explanation given by the appellant was justified. He had categorically stated that nuisance started in operating the said Atta Chakki (Floor Mill) when the respondent had installed DG Set in the year 2003 as it emitted smoke thereby creating air pollution and had also started creating noise pollution. Therefore, the cause of action for filing the suit was the installation of DG Set which was installed in the year 2003. The suit was filed in the year 2004 and was, thus, well within time. b) Furthermore, we find that the High Court has taken a very myopic view of the matter. The findings of fact which were recorded by the courts below were clear to the effect that after the use of DG Set by the respondent and because of the vibration created by it and the machines run through it, cracks on the wall of the appellant side developed at many places. This has happened after 2003. Another categorical finding is that running of the business is detrimental to the health of the appellant and his family. Once there are categorical findings that the flour mill of the respondent is causing noise as well as air pollution, it would be a continuing cause of action. Such a grave consequence of running this mill should not have been ignored by the High Court.
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12. After hearing the learned counsel for the parties, we do not find ourselves in agreement with the approach of the High Court. It may be noted that in the first instance no such plea was taken up by the respondent in the written submissions filed by him to the suit which was filed by the plaintiff/appellant and no issue on limitation came to be casted. Obviously, in the absence of any such issue framed, the parties did not lead any evidence. No doubt, even in the absence of any specific issue of limitation, by virtue of Section 3 of the Limitation Act, power is cast on the Court to see whether the suit is within limitation or time barred. However, such a plea could have been taken by the respondent in the Second Appeal before the High Court only if the issue of limitation was raised as a pure question of law. In the instant case, we find it to be a mixed question of law and fact and, therefore, it could not have been entertained by the High Court for the first time in the second appeal filed by the respondent.13. That apart, even on merits we find blemish in the approach of the High Court. There are at least two reasons for that which are as under: a) The explanation given by the appellant was justified. He had categorically stated that nuisance started in operating the said Atta Chakki (Floor Mill) when the respondent had installed DG Set in the year 2003 as it emitted smoke thereby creating air pollution and had also started creating noise pollution. Therefore, the cause of action for filing the suit was the installation of DG Set which was installed in the year 2003. The suit was filed in the year 2004 and was, thus, well within time. b) Furthermore, we find that the High Court has taken a very myopic view of the matter. The findings of fact which were recorded by the courts below were clear to the effect that after the use of DG Set by the respondent and because of the vibration created by it and the machines run through it, cracks on the wall of the appellant side developed at many places. This has happenedAnother categorical finding is that running of the business is detrimental to the health of the appellant and his family. Once there are categorical findings that the flour mill of the respondent is causing noise as well as air pollution, it would be a continuing cause of action. Such a grave consequence of running this mill should not have been ignored by the High Court.
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Anderson Wright Ltd Vs. Moran And Company | parent contract.17. We are in entire agreement with the view enunciated above. As we have said already, it is incumbent upon the Court when invited to stay a suit under section 34 of the Arbitration Act to decide first of all whether there is a binding agreement for arbitration between the parties to the suit. So far as the present case is concerned if it is held that the arbitration agreement and the contract containing it were between the parties to the suit, the dispute in the present suit would be one relating to the rights and liabilities of the parties on the basis of the contract itself and would come within the purview of the arbitration clause worded as it is in the widest of terms, in accordance with the principle enunciated by this Court in A. M. Mair and Company v. Gordhandass (1950 S.C.R. 792). If on the other hand in is held that the plaintiff was not a party to the agreement, the application for stay must necessarily be dismissed.18. The appellate Judges of the High Court in our opinion held rightly that the decision in A. M. Mair and Company v. Gordhandass (1950 S.C.R. 792) was not in any sense conclusive in the present case on the question of the dispute in the suit being included in the arbitration agreement. The report shows that the dispute in that case was whether the appellants had made the contract in their own right as principals or on behalf of the Bengal Jute Mill Company as agents of the latter. The decision of this question was held to turn upon a true construction of the contract and consequently it was a dispute under or arising out of or concerning the contract.19. The judgment proceeds on the footing that there was in fact a contract between the parties and the only dispute was in which character they were parties to it, the respondents contending that the appellants were not bound as principals while the latter said that they were. Mr. Justice Fazl Ali in delivering the judgment pointed out that the error into which the learned Judges of the appellate bench of the High Court appeared to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract never having been entered into.20. In this case it is certainly not admitted that the respondent was a party to the contract. In fact that is the subject-matter of controversy in the suit itself. But, as has been said already, the question having been raised in this application under section 34 of the Arbitration Act, the Court has undoubted jurisdiction to decide it for the purpose of finding as to whether or not there is a binding arbitration agreement between the parties to the suit. It has been said by Chakravartti C.J. and in our opinion rightly, that if the person whose concern with the agreement is in question is a signatory to the contract and formally a contracting party, that will be sufficient to enable the Court to hold for purposes of section 34 that he is a party to the agreement.21. It was the contention of the respondent in the Court below that this test was not fulfilled in the present case. The point has been canvassed before us also by Mr. Sen and it has been argued on the authority of several decided cases that in cases of this description the Bought Note is a mere intimation to the buyer, that the orders of the latter have been carried out and purchases have been made from other persons and not from them. The writer does not thereby become a party to the contract of purchase. and sale even as an agent. He remains a mere broker or intermediary and the provision of section 230(2) of the Contract Act cannot be invoked against him.22. Mr. Khaitan on the other hand argues that the English law being quite different from the Indian law regarding the liability of an agent contracting on behalf of an undisclosed principal, the English authorities are no guide to a solution of the problem. It is said that the case of Patiram Banerjee v. Kanknarrah Co., Ltd. (1915 I.L.R. 42 Cal. 1050), upon which the respondent relies, was wrongly decided being based upon English authorities which have no application to India.23. The respondent here, it is pointed out, signed an elaborate document setting out in full every particular of the contract entered into and it is impossible to say that he was not an agent executing a contract on behalf of another whose identity he did not disclose but was a mere intermediary conveying an information to the buyer. In our opinion, the point is not free from doubt and requires careful consideration and as it was not decided by the learned Judges of the High Court and we have not the advantage of having their views upon it, the proper course for us to follow would be to send the case back for a hearing of and decision on this point.24. We, therefore, allow the appeal and set aside the judgments of both the Courts below. The matter will go back to the appellate bench of the Calcutta High Court which will decide as an issue in the proceeding under section 34 of the Arbitration Act the question whether the respondent was or was not a party to the arbitration agreement. If the Court is of opinion that the respondent was in fact a party, the suit shall be stayed and the appellant would be allowed to proceed by way of arbitration in accordance with the arbitration clause. If on the other hand the finding is adverse to the appellant, the application will be dismissed. The appellant will have its costs of this appeal. Further costs between the parties will abide the result. | 1[ds]17. We are in entire agreement with the view enunciated above. As we have said already, it is incumbent upon the Court when invited to stay a suit under section 34 of the Arbitration Act to decide first of all whether there is a binding agreement for arbitration between the parties to the suit. So far as the present case is concerned if it is held that the arbitration agreement and the contract containing it were between the parties to the suit, the dispute in the present suit would be one relating to the rights and liabilities of the parties on the basis of the contract itself and would come within the purview of the arbitration clause worded as it is in the widest of terms, in accordance with the principle enunciated by this Court in A. M. Mair and Company v. Gordhandass (1950 S.C.R. 792). If on the other hand in is held that the plaintiff was not a party to the agreement, the application for stay must necessarily be dismissed.18. The appellate Judges of the High Court in our opinion held rightly that the decision in A. M. Mair and Company v. Gordhandass (1950 S.C.R. 792) was not in any sense conclusive in the present case on the question of the dispute in the suit being included in the arbitration agreement. The report shows that the dispute in that case was whether the appellants had made the contract in their own right as principals or on behalf of the Bengal Jute Mill Company as agents of the latter. The decision of this question was held to turn upon a true construction of the contract and consequently it was a dispute under or arising out of or concerning the contract.19. The judgment proceeds on the footing that there was in fact a contract between the parties and the only dispute was in which character they were parties to it, the respondents contending that the appellants were not bound as principals while the latter said that they were. Mr. Justice Fazl Ali in delivering the judgment pointed out that the error into which the learned Judges of the appellate bench of the High Court appeared to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract never having been entered into.20. In this case it is certainly not admitted that the respondent was a party to the contract. In fact that is theof controversy in the suit itself. But, as has been said already, the question having been raised in this application under section 34 of the Arbitration Act, the Court has undoubted jurisdiction to decide it for the purpose of finding as to whether or not there is a binding arbitration agreement between the parties to the suit. It has been said by Chakravartti C.J. and in our opinion rightly, that if the person whose concern with the agreement is in question is a signatory to the contract and formally a contracting party, that will be sufficient to enable the Court to hold for purposes of section 34 that he is a party to the agreement.21. It was the contention of the respondent in the Court below that this test was not fulfilled in the present case. The point has been canvassed before us also by Mr. Sen and it has been argued on the authority of several decided cases that in cases of this description the Bought Note is a mere intimation to the buyer, that the orders of the latter have been carried out and purchases have been made from other persons and not from them. The writer does not thereby become a party to the contract of purchase. and sale even as an agent. He remains a mere broker or intermediary and the provision of section 230(2) of the Contract Act cannot be invoked against him.23. The respondent here, it is pointed out, signed an elaborate document setting out in full every particular of the contract entered into and it is impossible to say that he was not an agent executing a contract on behalf of another whose identity he did not disclose but was a mere intermediary conveying an information to the buyer. In our opinion, the point is not free from doubt and requires careful consideration and as it was not decided by the learned Judges of the High Court and we have not the advantage of having their views upon it, the proper course for us to follow would be to send the case back for a hearing of and decision on this point.24. We, therefore, allow the appeal and set aside the judgments of both the Courts below. The matter will go back to the appellate bench of the Calcutta High Court which will decide as an issue in the proceeding under section 34 of the Arbitration Act the question whether the respondent was or was not a party to the arbitration agreement. If the Court is of opinion that the respondent was in fact a party, the suit shall be stayed and the appellant would be allowed to proceed by way of arbitration in accordance with the arbitration clause. If on the other hand the finding is adverse to the appellant, the application will be dismissed. The appellant will have its costs of this appeal. Further costs between the parties will abide the result. | 1 | 3,502 | 978 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
parent contract.17. We are in entire agreement with the view enunciated above. As we have said already, it is incumbent upon the Court when invited to stay a suit under section 34 of the Arbitration Act to decide first of all whether there is a binding agreement for arbitration between the parties to the suit. So far as the present case is concerned if it is held that the arbitration agreement and the contract containing it were between the parties to the suit, the dispute in the present suit would be one relating to the rights and liabilities of the parties on the basis of the contract itself and would come within the purview of the arbitration clause worded as it is in the widest of terms, in accordance with the principle enunciated by this Court in A. M. Mair and Company v. Gordhandass (1950 S.C.R. 792). If on the other hand in is held that the plaintiff was not a party to the agreement, the application for stay must necessarily be dismissed.18. The appellate Judges of the High Court in our opinion held rightly that the decision in A. M. Mair and Company v. Gordhandass (1950 S.C.R. 792) was not in any sense conclusive in the present case on the question of the dispute in the suit being included in the arbitration agreement. The report shows that the dispute in that case was whether the appellants had made the contract in their own right as principals or on behalf of the Bengal Jute Mill Company as agents of the latter. The decision of this question was held to turn upon a true construction of the contract and consequently it was a dispute under or arising out of or concerning the contract.19. The judgment proceeds on the footing that there was in fact a contract between the parties and the only dispute was in which character they were parties to it, the respondents contending that the appellants were not bound as principals while the latter said that they were. Mr. Justice Fazl Ali in delivering the judgment pointed out that the error into which the learned Judges of the appellate bench of the High Court appeared to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract never having been entered into.20. In this case it is certainly not admitted that the respondent was a party to the contract. In fact that is the subject-matter of controversy in the suit itself. But, as has been said already, the question having been raised in this application under section 34 of the Arbitration Act, the Court has undoubted jurisdiction to decide it for the purpose of finding as to whether or not there is a binding arbitration agreement between the parties to the suit. It has been said by Chakravartti C.J. and in our opinion rightly, that if the person whose concern with the agreement is in question is a signatory to the contract and formally a contracting party, that will be sufficient to enable the Court to hold for purposes of section 34 that he is a party to the agreement.21. It was the contention of the respondent in the Court below that this test was not fulfilled in the present case. The point has been canvassed before us also by Mr. Sen and it has been argued on the authority of several decided cases that in cases of this description the Bought Note is a mere intimation to the buyer, that the orders of the latter have been carried out and purchases have been made from other persons and not from them. The writer does not thereby become a party to the contract of purchase. and sale even as an agent. He remains a mere broker or intermediary and the provision of section 230(2) of the Contract Act cannot be invoked against him.22. Mr. Khaitan on the other hand argues that the English law being quite different from the Indian law regarding the liability of an agent contracting on behalf of an undisclosed principal, the English authorities are no guide to a solution of the problem. It is said that the case of Patiram Banerjee v. Kanknarrah Co., Ltd. (1915 I.L.R. 42 Cal. 1050), upon which the respondent relies, was wrongly decided being based upon English authorities which have no application to India.23. The respondent here, it is pointed out, signed an elaborate document setting out in full every particular of the contract entered into and it is impossible to say that he was not an agent executing a contract on behalf of another whose identity he did not disclose but was a mere intermediary conveying an information to the buyer. In our opinion, the point is not free from doubt and requires careful consideration and as it was not decided by the learned Judges of the High Court and we have not the advantage of having their views upon it, the proper course for us to follow would be to send the case back for a hearing of and decision on this point.24. We, therefore, allow the appeal and set aside the judgments of both the Courts below. The matter will go back to the appellate bench of the Calcutta High Court which will decide as an issue in the proceeding under section 34 of the Arbitration Act the question whether the respondent was or was not a party to the arbitration agreement. If the Court is of opinion that the respondent was in fact a party, the suit shall be stayed and the appellant would be allowed to proceed by way of arbitration in accordance with the arbitration clause. If on the other hand the finding is adverse to the appellant, the application will be dismissed. The appellant will have its costs of this appeal. Further costs between the parties will abide the result.
### Response:
1
### Explanation:
17. We are in entire agreement with the view enunciated above. As we have said already, it is incumbent upon the Court when invited to stay a suit under section 34 of the Arbitration Act to decide first of all whether there is a binding agreement for arbitration between the parties to the suit. So far as the present case is concerned if it is held that the arbitration agreement and the contract containing it were between the parties to the suit, the dispute in the present suit would be one relating to the rights and liabilities of the parties on the basis of the contract itself and would come within the purview of the arbitration clause worded as it is in the widest of terms, in accordance with the principle enunciated by this Court in A. M. Mair and Company v. Gordhandass (1950 S.C.R. 792). If on the other hand in is held that the plaintiff was not a party to the agreement, the application for stay must necessarily be dismissed.18. The appellate Judges of the High Court in our opinion held rightly that the decision in A. M. Mair and Company v. Gordhandass (1950 S.C.R. 792) was not in any sense conclusive in the present case on the question of the dispute in the suit being included in the arbitration agreement. The report shows that the dispute in that case was whether the appellants had made the contract in their own right as principals or on behalf of the Bengal Jute Mill Company as agents of the latter. The decision of this question was held to turn upon a true construction of the contract and consequently it was a dispute under or arising out of or concerning the contract.19. The judgment proceeds on the footing that there was in fact a contract between the parties and the only dispute was in which character they were parties to it, the respondents contending that the appellants were not bound as principals while the latter said that they were. Mr. Justice Fazl Ali in delivering the judgment pointed out that the error into which the learned Judges of the appellate bench of the High Court appeared to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract never having been entered into.20. In this case it is certainly not admitted that the respondent was a party to the contract. In fact that is theof controversy in the suit itself. But, as has been said already, the question having been raised in this application under section 34 of the Arbitration Act, the Court has undoubted jurisdiction to decide it for the purpose of finding as to whether or not there is a binding arbitration agreement between the parties to the suit. It has been said by Chakravartti C.J. and in our opinion rightly, that if the person whose concern with the agreement is in question is a signatory to the contract and formally a contracting party, that will be sufficient to enable the Court to hold for purposes of section 34 that he is a party to the agreement.21. It was the contention of the respondent in the Court below that this test was not fulfilled in the present case. The point has been canvassed before us also by Mr. Sen and it has been argued on the authority of several decided cases that in cases of this description the Bought Note is a mere intimation to the buyer, that the orders of the latter have been carried out and purchases have been made from other persons and not from them. The writer does not thereby become a party to the contract of purchase. and sale even as an agent. He remains a mere broker or intermediary and the provision of section 230(2) of the Contract Act cannot be invoked against him.23. The respondent here, it is pointed out, signed an elaborate document setting out in full every particular of the contract entered into and it is impossible to say that he was not an agent executing a contract on behalf of another whose identity he did not disclose but was a mere intermediary conveying an information to the buyer. In our opinion, the point is not free from doubt and requires careful consideration and as it was not decided by the learned Judges of the High Court and we have not the advantage of having their views upon it, the proper course for us to follow would be to send the case back for a hearing of and decision on this point.24. We, therefore, allow the appeal and set aside the judgments of both the Courts below. The matter will go back to the appellate bench of the Calcutta High Court which will decide as an issue in the proceeding under section 34 of the Arbitration Act the question whether the respondent was or was not a party to the arbitration agreement. If the Court is of opinion that the respondent was in fact a party, the suit shall be stayed and the appellant would be allowed to proceed by way of arbitration in accordance with the arbitration clause. If on the other hand the finding is adverse to the appellant, the application will be dismissed. The appellant will have its costs of this appeal. Further costs between the parties will abide the result.
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Hdfc Bank Ltd Vs. J.J.Mannan @ J.M.John Paul | for a limited duration so as to enable the accused to move for regular bail under Section 437 Cr.P.C. Reference was also made to the decision of this Court in Salauddin Abdulsamad Shaikh vs. State of Maharashtra [(1996) 1 SCC 667] where the same essentials have been reiterated. 12. Appearing for the Respondent No.1, Mr. Rajiv Dutta, learned Senior Advocate, submitted that except for wild allegations made against the Respondent No.1, nothing incriminating had been found against him. Mr. Dutta urged that the Respondent No.1 had been granted Anticipatory Bail as far back as on 3rd July, 2006, and he had never misused the privilege and had co-operated with the investigating agencies all through. Furthermore, the trial had already commenced and several witnesses had been examined and there could, therefore, be no justification for cancelling the Anticipatory Bail granted to him by the High Court more than three years ago. Referring to the decision of the Constitution Bench in the case of Gurbaksh Singh Sibbia Vs. State of Punjab [(1980) 2 SCC 565] , wherein the application of Section 438 Cr.P.C. had been considered in detail, Mr. Dutta submitted that the said provision had been interpreted to be a beneficent provision relating to personal liberty guaranteed under Section 21 of the Constitution. Mr. Dutta submitted that the Constitution Bench had observed that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438 Cr.P.C. 13. Reference was also made to the decision of this Court in the case of Savitri Agarwal & Ors. Vs. State of Maharashtra & Anr. [JT 2009 (9) SC 460 = (2009) 8 SCC 325 ], where the various decisions in this regard, with special emphasis on Sibbias case (supra) as also Adri Dharan Dass case (supra), were referred to. Their Lordships took note of the fact that the provisions of Section 438, as amended, had not yet been notified and that as a result the old provision continued to be in force. Hence, the earlier decisions would continue to be relevant to the facts of this case. Mr. Dutta submitted that having regard to the views expressed by this Court in no uncertain terms, prayer for Anticipatory Bail should not be refused and, in any event, in this case Anticipatory Bail had already been granted more than three years ago and hence the submissions now being made as to when Anticipatory Bail should be granted have become irrelevant. 14. Having carefully considered the submissions made on behalf of the respective parties and the decisions referred to in support of their respective cases, we are of the view that the role of the Respondent No.1 in the entire episode did not entitle him to the relief of Anticipatory Bail, much less a blanket order of bail. However, that is now a closed chapter. But what is of relevance is whether the High Court should have worded its order in such a way that it could be interpreted to mean, as has been done by all concerned, that the Respondent No.1 was not required to even appear and surrender before the Court during the entire investigation stage and the trial. Taking advantage of the same, the Respondent No.1 has successfully avoided the Court from the very initial stage of investigation and even the trial. Such kind of an order is not contemplated under Section 438 Cr.P.C. as has been repeatedly explained by this Court. The said position has been clearly enunciated in Adri Dharan Dass case (supra). Furthermore, it has also been consistently indicated that no blanket order could be passed under Section 438 Cr.P.C. to prevent the accused from being arrested at all in connection with the case. To avoid such an eventuality it was observed in Adri Dharan Dass case (supra) that Anticipatory Bail is given for a limited duration to enable the accused to surrender and to obtain regular bail. The same view was reiterated in Salauddins case (supra) wherein it was, inter alia, observed that Anticipatory Bail should be of limited duration only and primarily on the expiry of that duration or extended duration, the Court granting Anticipatory Bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. 15. The object of Section 438 Cr.P.C. has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 Cr.P.C. cannot also be invoked to exempt the accused from surrendering to the Court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 Cr.P.C., since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the Court at all even during the trial. Section 438 Cr.P.C. contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge- sheet, the accused has to surrender to the custody of the Court and pray for regular bail. On the strength of an order granting Anticipatory Bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court. If what has been submitted on behalf of the appellant that the Respondent No.1 has never appeared before the trial court is to be accepted, it will lead to the absurd situation that charge was framed against the accused in his absence, which would defeat the very purpose of Sub-Section (2) of Section 240 Cr.P.C. | 1[ds]14. Having carefully considered the submissions made on behalf of the respective parties and the decisions referred to in support of their respective cases, we are of the view that the role of the Respondent No.1 in the entire episode did not entitle him to the relief of Anticipatory Bail, much less a blanket order of bail. However, that is now a closed chapter. But what is of relevance is whether the High Court should have worded its order in such a way that it could be interpreted to mean, as has been done by all concerned, that the Respondent No.1 was not required to even appear and surrender before the Court during the entire investigation stage and the trial. Taking advantage of the same, the Respondent No.1 has successfully avoided the Court from the very initial stage of investigation and even the trial. Such kind of an order is not contemplated under Section 438 Cr.P.C. as has been repeatedly explained by this Court. The said position has been clearly enunciated in Adri Dharan Dass case (supra). Furthermore, it has also been consistently indicated that no blanket order could be passed under Section 438 Cr.P.C. to prevent the accused from being arrested at all in connection with the case. To avoid such an eventuality it was observed in Adri Dharan Dass case (supra) that Anticipatory Bail is given for a limited duration to enable the accused to surrender and to obtain regular bail. The same view was reiterated in Salauddins case (supra) wherein it was, inter alia, observed that Anticipatory Bail should be of limited duration only and primarily on the expiry of that duration or extended duration, the Court granting Anticipatory Bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted15. The object of Section 438 Cr.P.C. has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 Cr.P.C. cannot also be invoked to exempt the accused from surrendering to the Court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 Cr.P.C., since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the Court at all even during the trial. Section 438 Cr.P.C. contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge- sheet, the accused has to surrender to the custody of the Court and pray for regular bail. On the strength of an order granting Anticipatory Bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court. If what has been submitted on behalf of the appellant that the Respondent No.1 has never appeared before the trial court is to be accepted, it will lead to the absurd situation that charge was framed against the accused in his absence, which would defeat the very purpose of Sub-Section (2) of Section 240 Cr.P.C | 1 | 2,160 | 633 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
for a limited duration so as to enable the accused to move for regular bail under Section 437 Cr.P.C. Reference was also made to the decision of this Court in Salauddin Abdulsamad Shaikh vs. State of Maharashtra [(1996) 1 SCC 667] where the same essentials have been reiterated. 12. Appearing for the Respondent No.1, Mr. Rajiv Dutta, learned Senior Advocate, submitted that except for wild allegations made against the Respondent No.1, nothing incriminating had been found against him. Mr. Dutta urged that the Respondent No.1 had been granted Anticipatory Bail as far back as on 3rd July, 2006, and he had never misused the privilege and had co-operated with the investigating agencies all through. Furthermore, the trial had already commenced and several witnesses had been examined and there could, therefore, be no justification for cancelling the Anticipatory Bail granted to him by the High Court more than three years ago. Referring to the decision of the Constitution Bench in the case of Gurbaksh Singh Sibbia Vs. State of Punjab [(1980) 2 SCC 565] , wherein the application of Section 438 Cr.P.C. had been considered in detail, Mr. Dutta submitted that the said provision had been interpreted to be a beneficent provision relating to personal liberty guaranteed under Section 21 of the Constitution. Mr. Dutta submitted that the Constitution Bench had observed that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438 Cr.P.C. 13. Reference was also made to the decision of this Court in the case of Savitri Agarwal & Ors. Vs. State of Maharashtra & Anr. [JT 2009 (9) SC 460 = (2009) 8 SCC 325 ], where the various decisions in this regard, with special emphasis on Sibbias case (supra) as also Adri Dharan Dass case (supra), were referred to. Their Lordships took note of the fact that the provisions of Section 438, as amended, had not yet been notified and that as a result the old provision continued to be in force. Hence, the earlier decisions would continue to be relevant to the facts of this case. Mr. Dutta submitted that having regard to the views expressed by this Court in no uncertain terms, prayer for Anticipatory Bail should not be refused and, in any event, in this case Anticipatory Bail had already been granted more than three years ago and hence the submissions now being made as to when Anticipatory Bail should be granted have become irrelevant. 14. Having carefully considered the submissions made on behalf of the respective parties and the decisions referred to in support of their respective cases, we are of the view that the role of the Respondent No.1 in the entire episode did not entitle him to the relief of Anticipatory Bail, much less a blanket order of bail. However, that is now a closed chapter. But what is of relevance is whether the High Court should have worded its order in such a way that it could be interpreted to mean, as has been done by all concerned, that the Respondent No.1 was not required to even appear and surrender before the Court during the entire investigation stage and the trial. Taking advantage of the same, the Respondent No.1 has successfully avoided the Court from the very initial stage of investigation and even the trial. Such kind of an order is not contemplated under Section 438 Cr.P.C. as has been repeatedly explained by this Court. The said position has been clearly enunciated in Adri Dharan Dass case (supra). Furthermore, it has also been consistently indicated that no blanket order could be passed under Section 438 Cr.P.C. to prevent the accused from being arrested at all in connection with the case. To avoid such an eventuality it was observed in Adri Dharan Dass case (supra) that Anticipatory Bail is given for a limited duration to enable the accused to surrender and to obtain regular bail. The same view was reiterated in Salauddins case (supra) wherein it was, inter alia, observed that Anticipatory Bail should be of limited duration only and primarily on the expiry of that duration or extended duration, the Court granting Anticipatory Bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. 15. The object of Section 438 Cr.P.C. has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 Cr.P.C. cannot also be invoked to exempt the accused from surrendering to the Court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 Cr.P.C., since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the Court at all even during the trial. Section 438 Cr.P.C. contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge- sheet, the accused has to surrender to the custody of the Court and pray for regular bail. On the strength of an order granting Anticipatory Bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court. If what has been submitted on behalf of the appellant that the Respondent No.1 has never appeared before the trial court is to be accepted, it will lead to the absurd situation that charge was framed against the accused in his absence, which would defeat the very purpose of Sub-Section (2) of Section 240 Cr.P.C.
### Response:
1
### Explanation:
14. Having carefully considered the submissions made on behalf of the respective parties and the decisions referred to in support of their respective cases, we are of the view that the role of the Respondent No.1 in the entire episode did not entitle him to the relief of Anticipatory Bail, much less a blanket order of bail. However, that is now a closed chapter. But what is of relevance is whether the High Court should have worded its order in such a way that it could be interpreted to mean, as has been done by all concerned, that the Respondent No.1 was not required to even appear and surrender before the Court during the entire investigation stage and the trial. Taking advantage of the same, the Respondent No.1 has successfully avoided the Court from the very initial stage of investigation and even the trial. Such kind of an order is not contemplated under Section 438 Cr.P.C. as has been repeatedly explained by this Court. The said position has been clearly enunciated in Adri Dharan Dass case (supra). Furthermore, it has also been consistently indicated that no blanket order could be passed under Section 438 Cr.P.C. to prevent the accused from being arrested at all in connection with the case. To avoid such an eventuality it was observed in Adri Dharan Dass case (supra) that Anticipatory Bail is given for a limited duration to enable the accused to surrender and to obtain regular bail. The same view was reiterated in Salauddins case (supra) wherein it was, inter alia, observed that Anticipatory Bail should be of limited duration only and primarily on the expiry of that duration or extended duration, the Court granting Anticipatory Bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted15. The object of Section 438 Cr.P.C. has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 Cr.P.C. cannot also be invoked to exempt the accused from surrendering to the Court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 Cr.P.C., since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the Court at all even during the trial. Section 438 Cr.P.C. contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge- sheet, the accused has to surrender to the custody of the Court and pray for regular bail. On the strength of an order granting Anticipatory Bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court. If what has been submitted on behalf of the appellant that the Respondent No.1 has never appeared before the trial court is to be accepted, it will lead to the absurd situation that charge was framed against the accused in his absence, which would defeat the very purpose of Sub-Section (2) of Section 240 Cr.P.C
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COMMISSIONER OF INCOME TAX Vs. LAXMAN DAS KHANDELWAL | Section 143(3) of the Act. It was observed:-"3. The Appellate Tribunal held, while affirming the decision of CIT (A) that non-issue of notice under Section 143(2) is only a procedural irregularity and the same is curable. In the appeal filed by the assessee before the Gauhati High Court, the following two questions of law were raised for consideration and decision of the High Court, they were:(1) Whether on the facts and in circumstances of the case the issuance of notice under Section 143(3) of the Income Tax Act, 1961 within the prescribed time- limit for the purpose of making the assessment under Section 143(3) of the Income Tax Act, 1961 is mandatory? And (2) Whether, on the facts and in the circumstances of the case and in view of the undisputed findings arrived at by the Commissioner of Income Tax (Appeals), the additions made under Section 68 of the Income Tax Act, 1961 should be deleted or set aside? 4. The High Court, disagreeing with the Tribunal, held, that the provisions of Section 142 and sub- sections (2) and (3) of Section 143 will have mandatory application in a case where the assessing officer in repudiation of return filed in response to a notice issued under Section 158-BC(a) proceeds to make an inquiry. Accordingly, the High Court answered the question of law framed in affirmative and in favour of the appellant and against the Revenue. The Revenue thereafter applied to this Court for special leave under Article 136, and the same was granted, and hence this appeal. … … … 13. The only question that arises for our consideration in this batch of appeals is: whether service of notice on the assessee under Section 143(2) within the prescribed period of time is a prerequisite for framing the block assessment under Chapter XIV-B of the Income Tax Act, 1961? … … … 27. The case of the Revenue is that the expression so far as may be, apply indicates that it is not expected to follow the provisions of Section 142, sub-sections (2) and (3) of Section 143 strictly for the purpose of block assessments. We do not agree with the submissions of the learned counsel for the Revenue, since we do not see any reason to restrict the scope and meaning of the expression so far as may be, apply. In our view, where the assessing officer in repudiation of the return filed under Section 158- BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of Section 142, sub-sections (2) and (3) of Section 143. 6. The question, however, remains whether Section 292BB which came into effect on and from 01.04.2008 has effected any change. Said Section 292BB is to the following effect:-292BB. Notice deemed to be valid in certain circumstances. – Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was – (a) Not served upon him; or (b) Not served upon him in time; or (c) Served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment. 7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. 2 tabindex = 1>According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. 2 tabindex = 1>On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Blue Moon 2 tabindex = 1>s case. The issue that however needs to be considered is the impact of Section 292BB of the Act. 9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself. 10. Since the facts on record are clear that no notice under Section 143(2) of the Act was ever issued by the Department, the findings rendered by the High Court and the Tribunal and the conclusion arrived at were correct. We, therefore, see no reason to take a different view in the matter. | 0[ds]5. At the outset, it must be stated that out of two questions of law that arose for consideration in Hotel Blue | 0 | 1,958 | 28 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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Section 143(3) of the Act. It was observed:-"3. The Appellate Tribunal held, while affirming the decision of CIT (A) that non-issue of notice under Section 143(2) is only a procedural irregularity and the same is curable. In the appeal filed by the assessee before the Gauhati High Court, the following two questions of law were raised for consideration and decision of the High Court, they were:(1) Whether on the facts and in circumstances of the case the issuance of notice under Section 143(3) of the Income Tax Act, 1961 within the prescribed time- limit for the purpose of making the assessment under Section 143(3) of the Income Tax Act, 1961 is mandatory? And (2) Whether, on the facts and in the circumstances of the case and in view of the undisputed findings arrived at by the Commissioner of Income Tax (Appeals), the additions made under Section 68 of the Income Tax Act, 1961 should be deleted or set aside? 4. The High Court, disagreeing with the Tribunal, held, that the provisions of Section 142 and sub- sections (2) and (3) of Section 143 will have mandatory application in a case where the assessing officer in repudiation of return filed in response to a notice issued under Section 158-BC(a) proceeds to make an inquiry. Accordingly, the High Court answered the question of law framed in affirmative and in favour of the appellant and against the Revenue. The Revenue thereafter applied to this Court for special leave under Article 136, and the same was granted, and hence this appeal. … … … 13. The only question that arises for our consideration in this batch of appeals is: whether service of notice on the assessee under Section 143(2) within the prescribed period of time is a prerequisite for framing the block assessment under Chapter XIV-B of the Income Tax Act, 1961? … … … 27. The case of the Revenue is that the expression so far as may be, apply indicates that it is not expected to follow the provisions of Section 142, sub-sections (2) and (3) of Section 143 strictly for the purpose of block assessments. We do not agree with the submissions of the learned counsel for the Revenue, since we do not see any reason to restrict the scope and meaning of the expression so far as may be, apply. In our view, where the assessing officer in repudiation of the return filed under Section 158- BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of Section 142, sub-sections (2) and (3) of Section 143. 6. The question, however, remains whether Section 292BB which came into effect on and from 01.04.2008 has effected any change. Said Section 292BB is to the following effect:-292BB. Notice deemed to be valid in certain circumstances. – Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was – (a) Not served upon him; or (b) Not served upon him in time; or (c) Served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment. 7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. 2 tabindex = 1>According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. 2 tabindex = 1>On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Blue Moon 2 tabindex = 1>s case. The issue that however needs to be considered is the impact of Section 292BB of the Act. 9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself. 10. Since the facts on record are clear that no notice under Section 143(2) of the Act was ever issued by the Department, the findings rendered by the High Court and the Tribunal and the conclusion arrived at were correct. We, therefore, see no reason to take a different view in the matter.
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5. At the outset, it must be stated that out of two questions of law that arose for consideration in Hotel Blue
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Jagriti Devi Vs. State of H.P | the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."18. The learned Judge explained the third ingredient in the following words (at p. 468): (AIR para 16)"The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."19. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case4 for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted.20. Thus, according to the rule laid down in Virsa Singh case4 even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.21. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages." 21. The aforesaid principles have been consistently applied by this Court in several decisions. Reference in this regard may be made to the decision of this Court in Ruli Ram v. State of Haryana, (2002) 7 SCC 691 ; Augustine Saldanha v. State of Karnataka, (2003) 10 SCC 472 ; State of U. P. v. Virendra Prasad, (2004) 9 SCC 37; Chacko v. State of Kerala, (2004) 12 SCC 269 ; and S. N. Bhadolkar v. State of Maharasthra, (2005) 9 SCC 71. 22. That being the well settled legal position, when the factual background of the present case is tested on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the trial court as also by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident of murder in which the accused-appellant was insulted by the deceased and by doing so the deceased provoked the accused-appellant. The deceased also took out the `Khukri which was under the pillow with the intention of assaulting the accused-appellant and the accused-appellant in order to save herself grappled with the deceased and during that process she also received injuries. The prosecution has failed to give any explanation with regard to those injuries received by the accused-appellant. Further, it is also established in evidence that the `Khukri used in the commission of offence was kept by the deceased under her pillow while she was sleeping in the veranda outside the house. Clearly, there was no intention on the part of the accused-appellant to kill the deceased. That being the position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section 304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. | 1[ds]16. We have examined the evidence of19 carefully and on a reading thereof, we are of the considered view that both19 came to the scene of occurrence when thehad assaulted the deceased with the `Khukri.came to the place of occurrence when he sawstanding in the veranda.was informed by18 went inside to informby that time the incident must have been over as it took only few minutes for theto give blows to the deceased and then running away from the scene of occurrence. Therefore, it is crystal clear thathas seen the entire incident from the starting point namely altercation taking place between theand the deceased and thereafterWe find no reason to disbelieve the statement ofIn our considered opinion both the trial court and the High Court discarded her evidence without any cogent reason. The trial court and the High Court took the view that the injuries received by thewere not explained by the prosecution in the trial. It is true that those injuries were received by thewhile there was a grappling going on between theand the deceased for snatching `Khukri which was the weapon of murder. On appreciation of the entire evidence on record, we are satisfied that there was an altercation preceding the incident of murder in whichwas insulted by the deceased and by doing so the deceased provoked theant snatched away the `Khukri from the hands of the deceased due to which thealso received the injuries.18. Section 299 and Section 300 IPC deals with the definition of culpable homicide and murder respectively. Section 299 defines culpable homicide as the act of causing death; (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death or (iii) with the knowledge that such act is likely to cause death. The bare reading of the section makes it crystal clear that the first and the second clause of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed. Section 300 IPC, however, deals with murder although there is no clear definition of murder provided in Section 300 IPC. It has been repeatedly held by this Court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this Court.That being the well settled legal position, when the factual background of the present case is tested on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the trial court as also by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident of murder in which thes insulted by the deceased and by doing so the deceased provoked theThe deceased also took out the `Khukri which was under the pillow with the intention of assaulting theant in order to save herself grappled with the deceased and during that process she also received injuries. The prosecution has failed to give any explanation with regard to those injuries received by theFurther, it is also established in evidence that the `Khukri used in the commission of offence was kept by the deceased under her pillow while she was sleeping in the veranda outside the house. Clearly, there was no intention on the part of theto kill the deceased. That being the position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section 304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. | 1 | 4,940 | 877 | ### Instruction:
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the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."18. The learned Judge explained the third ingredient in the following words (at p. 468): (AIR para 16)"The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."19. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case4 for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted.20. Thus, according to the rule laid down in Virsa Singh case4 even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.21. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages." 21. The aforesaid principles have been consistently applied by this Court in several decisions. Reference in this regard may be made to the decision of this Court in Ruli Ram v. State of Haryana, (2002) 7 SCC 691 ; Augustine Saldanha v. State of Karnataka, (2003) 10 SCC 472 ; State of U. P. v. Virendra Prasad, (2004) 9 SCC 37; Chacko v. State of Kerala, (2004) 12 SCC 269 ; and S. N. Bhadolkar v. State of Maharasthra, (2005) 9 SCC 71. 22. That being the well settled legal position, when the factual background of the present case is tested on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the trial court as also by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident of murder in which the accused-appellant was insulted by the deceased and by doing so the deceased provoked the accused-appellant. The deceased also took out the `Khukri which was under the pillow with the intention of assaulting the accused-appellant and the accused-appellant in order to save herself grappled with the deceased and during that process she also received injuries. The prosecution has failed to give any explanation with regard to those injuries received by the accused-appellant. Further, it is also established in evidence that the `Khukri used in the commission of offence was kept by the deceased under her pillow while she was sleeping in the veranda outside the house. Clearly, there was no intention on the part of the accused-appellant to kill the deceased. That being the position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section 304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.
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16. We have examined the evidence of19 carefully and on a reading thereof, we are of the considered view that both19 came to the scene of occurrence when thehad assaulted the deceased with the `Khukri.came to the place of occurrence when he sawstanding in the veranda.was informed by18 went inside to informby that time the incident must have been over as it took only few minutes for theto give blows to the deceased and then running away from the scene of occurrence. Therefore, it is crystal clear thathas seen the entire incident from the starting point namely altercation taking place between theand the deceased and thereafterWe find no reason to disbelieve the statement ofIn our considered opinion both the trial court and the High Court discarded her evidence without any cogent reason. The trial court and the High Court took the view that the injuries received by thewere not explained by the prosecution in the trial. It is true that those injuries were received by thewhile there was a grappling going on between theand the deceased for snatching `Khukri which was the weapon of murder. On appreciation of the entire evidence on record, we are satisfied that there was an altercation preceding the incident of murder in whichwas insulted by the deceased and by doing so the deceased provoked theant snatched away the `Khukri from the hands of the deceased due to which thealso received the injuries.18. Section 299 and Section 300 IPC deals with the definition of culpable homicide and murder respectively. Section 299 defines culpable homicide as the act of causing death; (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death or (iii) with the knowledge that such act is likely to cause death. The bare reading of the section makes it crystal clear that the first and the second clause of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed. Section 300 IPC, however, deals with murder although there is no clear definition of murder provided in Section 300 IPC. It has been repeatedly held by this Court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this Court.That being the well settled legal position, when the factual background of the present case is tested on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the trial court as also by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident of murder in which thes insulted by the deceased and by doing so the deceased provoked theThe deceased also took out the `Khukri which was under the pillow with the intention of assaulting theant in order to save herself grappled with the deceased and during that process she also received injuries. The prosecution has failed to give any explanation with regard to those injuries received by theFurther, it is also established in evidence that the `Khukri used in the commission of offence was kept by the deceased under her pillow while she was sleeping in the veranda outside the house. Clearly, there was no intention on the part of theto kill the deceased. That being the position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section 304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.
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Kallappa Sultana Patil By L. R. S. Dandu Kallappa Patil and Others Vs. Balgonda Sultangouda Patil | against the appellants. But this reasoning does not vitiate the conclusions arrived at by the learned Judges that the plaintiff was entitled to get possession of the properties as Nawa Wala under the Wat Hukum, as Maya Goudas branch had become Nashtamsha.9. Mr. Datar further contended that the expression Nashtamsha occurring in the Wat Hukum means a total absence of heirs in the sense that there is nobody to succeed, under Hindu Law, to the estate of Maya Gouda. As Maya Gouda had left a daughter, the 7th defendant and as, in any event the appellants are the nearest reversioners entitled to the succeed to the estate of Maya Gouda under Hindu Law, it cannot be stated that the line of Maya Gouda has become extinct so as to enable the plaintiff to recover possession of the properties. It is common ground that the Wat Hukum provides for the Nawa Wala taking possession of the properties if the family of a particular holder of Watan lands becomes Nashtamsha. The expression Nashtamsha has come up for consideration before the Courts in Kolhapur. The Supreme Court of Kolhapur, in Dada Babaji Patils case (supra) had to consider the question whether the expression Nashtamsha means complete and total absence of direct lineal heirs. In that decision, after the death of the holder, his widow inherited the lands and remained in possession till her death. On the death of the widow, the reversionary heirs of the deceased holder under Hindu law entered into possession of the properties. The plaintiff in that case, who had been registered as the Nawa Wala by the revenue authorities, sued to obtain possession of the lands and the claim of the plaintiff was allowed by the Court, holding that the existence of the reversionary heirs did not take the case out of Nashtamsha as provided in the Wat Hukum. The above decision was also followed in the same Court by Lokur, J., in S.A. 210 of 1947, who held that if there is no direct male descendant, then that case should be considered as Nashtamsha. We have already referred to the fact that these two decisions have been followed by the Trial Court as well as by the Assistant Judge on appeal.10. From these decisions it follows that in Kolhapur State, the succession to Watan properties was not governed by the ordinary Hindu law, but by Wat Hukum No. 26 and on the interpretation placed by the Courts in that State, there will be Nashtamsha when a person dies without leaving behind him any sons. That is the position in the case before us. As pointed out earlier, Maya Gouda died leaving his daughter, the 7th defendant, but no sons. The 7th defendant possibly could not inherit the Watan properties, according to the decision of the Courts in Kolhapur State. The plaintiffs specific claim was that under the law obtaining in Kolhapur State, the 7th defendant was only the daughter of Maya Gouda and could and not inherit the properties and that he, as the Nawa Wala, was entitled to recover possession of the properties. On the other hand, defendants 1 to 4 specifically pleaded the 7th defendant, the daughter of Maya Gouda was entitled to inherit the properties. All the Courts have accepted the plaintiffs plea and decreed his claim.11. Mr. Datar, learned counsel, referred us to the decision of the Division Bench of the Bombay High Court in Shivgonda Annasaheb Virgonda Patil v. Champebai Bharatar Sidgonda Deosaheb Shivgonda Patil. (Appeal No. 297 of 1957, from original decree, decided on 7-12-1962). That judgment was delivered on December 7, 1962 and a certified copy of the same has been placed before us. The learned Judges have observed :"Whatever may have been the interpretation of the Vathukuma in Kolhapur State, so far as this Court is concerned it is well settled that Nashtamsha does not mean a man dying without male issue but it means a man dying without leaving any heir. Accordingly, therefore unlike the authorities in Kolhapur State, this Court held that as long as there was a single heir, whether male or female, to the deceased, it does not result in Nashtamsha of the line."12. According to this decision, Maya Goudas branch cannot be considered to be Nashtamsha as he has left his daughter, the 7th defendant, as his heir and she will be entitled to inherit the Watan properties.13. We may also refer to a Division Bench decision of the Mysore High Court in Sabmshail Ramachandra Kulkarni v. Gopal Govind Dattawad, ((1960) Mys LJ 441) wherein the Mysore High Court has not agreed with the view of the Bombay High Court, expressed in an earlier decision, similar to the view taken by the Bombay High Court in Shivgondas case, (Appeal No. 297 of 1957, from original decree, decided on 7-12-1962) that the expression Nashtamsha has to be interpreted as meaning that a holder has left no heirs at all who can inherit his estate under the Hindu Law.14. It is not necessary for us in this case to resolve the conflicting views noted above. Whatever may be the interpretation, the appellants will not be entitled to inherit the properties of Maya Gouda. Because, if the view of the Kolhapur Courts is accepted, the plaintiff, as the Nawa Wala, is entitled to get possession and if the Bombay view is accepted, it is the 7th defendant, who will be entitled to inherit the Watan properties of her father Maya Gouda. In either case, the appellants cannot inherit the Watan properties of Maya Gouda and thus they are out of the picture. The 7th defendant, against whom also a decree for possession has been passed, did not contest the claim of the plaintiff. Nor did she file any appeal against the decree of the Trial Court. It has to be further noted that even the appellants have not made her a party, either before the first Appellate Court, or in the High Court, or even before this Court.1 | 0[ds]t is no doubt seen that the High Court has proceeded on the basis that the right to Watan properties goes along with the duty to perform the services, and therefore, prima facie, the person who is required to do the services, must be entitled to the property. But a reference to the Wat Hukum No. 26 indicates that all the properties need not necessarily be with the person doing the service, and that the service is to be taken from persons in the eldest branch regarding Patils and that it is not to be taken by other sharers. It further provides that as service is not to be taken from Bhauband, local fund and judi of their share should be recovered by the village officers along with Government land revenues to be credited to the Government for payment to the person registered as Nawa Wala. In this case, though the plaintiff as the registered Nawa Wala was doing service, it is seen that the suit properties were in possession of Jakkawwa, the widow of Maya Gouda, who died about 35 or 40 years ago. That the property must go with the service, is only one of the reasons given by the High Court for holding against the appellants. But this reasoning does not vitiate the conclusions arrived at by the learned Judges that the plaintiff was entitled to get possession of the properties as Nawa Wala under the Wat Hukum, as Maya Goudas branch had become Nashtamsha.10. From these decisions it follows that in Kolhapur State, the succession to Watan properties was not governed by the ordinary Hindu law, but by Wat Hukum No. 26 and on the interpretation placed by the Courts in that State, there will be Nashtamsha when a person dies without leaving behind him any sons. That is the position in the case before us. As pointed out earlier, Maya Gouda died leaving his daughter, the 7th defendant, but no sons. The 7th defendant possibly could not inherit the Watan properties, according to the decision of the Courts in Kolhapur State. The plaintiffs specific claim was that under the law obtaining in Kolhapur State, the 7th defendant was only the daughter of Maya Gouda and could and not inherit the properties and that he, as the Nawa Wala, was entitled to recover possession of the properties. On the other hand, defendants 1 to 4 specifically pleaded the 7th defendant, the daughter of Maya Gouda was entitled to inherit the properties. All the Courts have accepted the plaintiffs plea and decreed his claim.It is not necessary for us in this case to resolve the conflicting views noted above. Whatever may be the interpretation, the appellants will not be entitled to inherit the properties of Maya Gouda. Because, if the view of the Kolhapur Courts is accepted, the plaintiff, as the Nawa Wala, is entitled to get possession and if the Bombay view is accepted, it is the 7th defendant, who will be entitled to inherit the Watan properties of her father Maya Gouda. In either case, the appellants cannot inherit the Watan properties of Maya Gouda and thus they are out of the picture. The 7th defendant, against whom also a decree for possession has been passed, did not contest the claim of the plaintiff. Nor did she file any appeal against the decree of the Trial Court. It has to be further noted that even the appellants have not made her a party, either before the first Appellate Court, or in the High Court, or even before thisMaya Gouda had left a daughter, the 7th defendant and as, in any event the appellants are the nearest reversioners entitled to the succeed to the estate of Maya Gouda under Hindu Law, it cannot be stated that the line of Maya Gouda has become extinct so as to enable the plaintiff to recover possession of the properties. It is common ground that the Wat Hukum provides for the Nawa Wala taking possession of the properties if the family of a particular holder of Watan lands becomes Nashtamsha. The expression Nashtamsha has come up for consideration before the Courts in Kolhapur. The Supreme Court of Kolhapur, in Dada Babaji Patils case (supra) had to consider the question whether the expression Nashtamsha means complete and total absence of direct lineal heirs. In that decision, after the death of the holder, his widow inherited the lands and remained in possession till her death. On the death of the widow, the reversionary heirs of the deceased holder under Hindu law entered into possession of the properties. The plaintiff in that case, who had been registered as the Nawa Wala by the revenue authorities, sued to obtain possession of the lands and the claim of the plaintiff was allowed by the Court, holding that the existence of the reversionary heirs did not take the case out of Nashtamsha as provided in the Wat Hukum. The above decision was also followed in the same Court by Lokur, J., in S.A. 210 of 1947, who held that if there is no direct male descendant, then that case should be considered as Nashtamsha. We have already referred to the fact that these two decisions have been followed by the Trial Court as well as by the Assistant Judge on appeal.It is not necessary for us in this case to resolve the conflicting views noted above. Whatever may be the interpretation, the appellants will not be entitled to inherit the properties of Maya Gouda. Because, if the view of the Kolhapur Courts is accepted, the plaintiff, as the Nawa Wala, is entitled to get possession and if the Bombay view is accepted, it is the 7th defendant, who will be entitled to inherit the Watan properties of her father Maya Gouda. In either case, the appellants cannot inherit the Watan properties of Maya Gouda and thus they are out of the picture. The 7th defendant, against whom also a decree for possession has been passed, did not contest the claim of the plaintiff. Nor did she file any appeal against the decree of the Trial Court. It has to be further noted that even the appellants have not made her a party, either before the first Appellate Court, or in the High Court, or even before this | 0 | 2,573 | 1,158 | ### Instruction:
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against the appellants. But this reasoning does not vitiate the conclusions arrived at by the learned Judges that the plaintiff was entitled to get possession of the properties as Nawa Wala under the Wat Hukum, as Maya Goudas branch had become Nashtamsha.9. Mr. Datar further contended that the expression Nashtamsha occurring in the Wat Hukum means a total absence of heirs in the sense that there is nobody to succeed, under Hindu Law, to the estate of Maya Gouda. As Maya Gouda had left a daughter, the 7th defendant and as, in any event the appellants are the nearest reversioners entitled to the succeed to the estate of Maya Gouda under Hindu Law, it cannot be stated that the line of Maya Gouda has become extinct so as to enable the plaintiff to recover possession of the properties. It is common ground that the Wat Hukum provides for the Nawa Wala taking possession of the properties if the family of a particular holder of Watan lands becomes Nashtamsha. The expression Nashtamsha has come up for consideration before the Courts in Kolhapur. The Supreme Court of Kolhapur, in Dada Babaji Patils case (supra) had to consider the question whether the expression Nashtamsha means complete and total absence of direct lineal heirs. In that decision, after the death of the holder, his widow inherited the lands and remained in possession till her death. On the death of the widow, the reversionary heirs of the deceased holder under Hindu law entered into possession of the properties. The plaintiff in that case, who had been registered as the Nawa Wala by the revenue authorities, sued to obtain possession of the lands and the claim of the plaintiff was allowed by the Court, holding that the existence of the reversionary heirs did not take the case out of Nashtamsha as provided in the Wat Hukum. The above decision was also followed in the same Court by Lokur, J., in S.A. 210 of 1947, who held that if there is no direct male descendant, then that case should be considered as Nashtamsha. We have already referred to the fact that these two decisions have been followed by the Trial Court as well as by the Assistant Judge on appeal.10. From these decisions it follows that in Kolhapur State, the succession to Watan properties was not governed by the ordinary Hindu law, but by Wat Hukum No. 26 and on the interpretation placed by the Courts in that State, there will be Nashtamsha when a person dies without leaving behind him any sons. That is the position in the case before us. As pointed out earlier, Maya Gouda died leaving his daughter, the 7th defendant, but no sons. The 7th defendant possibly could not inherit the Watan properties, according to the decision of the Courts in Kolhapur State. The plaintiffs specific claim was that under the law obtaining in Kolhapur State, the 7th defendant was only the daughter of Maya Gouda and could and not inherit the properties and that he, as the Nawa Wala, was entitled to recover possession of the properties. On the other hand, defendants 1 to 4 specifically pleaded the 7th defendant, the daughter of Maya Gouda was entitled to inherit the properties. All the Courts have accepted the plaintiffs plea and decreed his claim.11. Mr. Datar, learned counsel, referred us to the decision of the Division Bench of the Bombay High Court in Shivgonda Annasaheb Virgonda Patil v. Champebai Bharatar Sidgonda Deosaheb Shivgonda Patil. (Appeal No. 297 of 1957, from original decree, decided on 7-12-1962). That judgment was delivered on December 7, 1962 and a certified copy of the same has been placed before us. The learned Judges have observed :"Whatever may have been the interpretation of the Vathukuma in Kolhapur State, so far as this Court is concerned it is well settled that Nashtamsha does not mean a man dying without male issue but it means a man dying without leaving any heir. Accordingly, therefore unlike the authorities in Kolhapur State, this Court held that as long as there was a single heir, whether male or female, to the deceased, it does not result in Nashtamsha of the line."12. According to this decision, Maya Goudas branch cannot be considered to be Nashtamsha as he has left his daughter, the 7th defendant, as his heir and she will be entitled to inherit the Watan properties.13. We may also refer to a Division Bench decision of the Mysore High Court in Sabmshail Ramachandra Kulkarni v. Gopal Govind Dattawad, ((1960) Mys LJ 441) wherein the Mysore High Court has not agreed with the view of the Bombay High Court, expressed in an earlier decision, similar to the view taken by the Bombay High Court in Shivgondas case, (Appeal No. 297 of 1957, from original decree, decided on 7-12-1962) that the expression Nashtamsha has to be interpreted as meaning that a holder has left no heirs at all who can inherit his estate under the Hindu Law.14. It is not necessary for us in this case to resolve the conflicting views noted above. Whatever may be the interpretation, the appellants will not be entitled to inherit the properties of Maya Gouda. Because, if the view of the Kolhapur Courts is accepted, the plaintiff, as the Nawa Wala, is entitled to get possession and if the Bombay view is accepted, it is the 7th defendant, who will be entitled to inherit the Watan properties of her father Maya Gouda. In either case, the appellants cannot inherit the Watan properties of Maya Gouda and thus they are out of the picture. The 7th defendant, against whom also a decree for possession has been passed, did not contest the claim of the plaintiff. Nor did she file any appeal against the decree of the Trial Court. It has to be further noted that even the appellants have not made her a party, either before the first Appellate Court, or in the High Court, or even before this Court.1
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0
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to the Wat Hukum No. 26 indicates that all the properties need not necessarily be with the person doing the service, and that the service is to be taken from persons in the eldest branch regarding Patils and that it is not to be taken by other sharers. It further provides that as service is not to be taken from Bhauband, local fund and judi of their share should be recovered by the village officers along with Government land revenues to be credited to the Government for payment to the person registered as Nawa Wala. In this case, though the plaintiff as the registered Nawa Wala was doing service, it is seen that the suit properties were in possession of Jakkawwa, the widow of Maya Gouda, who died about 35 or 40 years ago. That the property must go with the service, is only one of the reasons given by the High Court for holding against the appellants. But this reasoning does not vitiate the conclusions arrived at by the learned Judges that the plaintiff was entitled to get possession of the properties as Nawa Wala under the Wat Hukum, as Maya Goudas branch had become Nashtamsha.10. From these decisions it follows that in Kolhapur State, the succession to Watan properties was not governed by the ordinary Hindu law, but by Wat Hukum No. 26 and on the interpretation placed by the Courts in that State, there will be Nashtamsha when a person dies without leaving behind him any sons. That is the position in the case before us. As pointed out earlier, Maya Gouda died leaving his daughter, the 7th defendant, but no sons. The 7th defendant possibly could not inherit the Watan properties, according to the decision of the Courts in Kolhapur State. The plaintiffs specific claim was that under the law obtaining in Kolhapur State, the 7th defendant was only the daughter of Maya Gouda and could and not inherit the properties and that he, as the Nawa Wala, was entitled to recover possession of the properties. On the other hand, defendants 1 to 4 specifically pleaded the 7th defendant, the daughter of Maya Gouda was entitled to inherit the properties. All the Courts have accepted the plaintiffs plea and decreed his claim.It is not necessary for us in this case to resolve the conflicting views noted above. Whatever may be the interpretation, the appellants will not be entitled to inherit the properties of Maya Gouda. Because, if the view of the Kolhapur Courts is accepted, the plaintiff, as the Nawa Wala, is entitled to get possession and if the Bombay view is accepted, it is the 7th defendant, who will be entitled to inherit the Watan properties of her father Maya Gouda. In either case, the appellants cannot inherit the Watan properties of Maya Gouda and thus they are out of the picture. The 7th defendant, against whom also a decree for possession has been passed, did not contest the claim of the plaintiff. Nor did she file any appeal against the decree of the Trial Court. It has to be further noted that even the appellants have not made her a party, either before the first Appellate Court, or in the High Court, or even before thisMaya Gouda had left a daughter, the 7th defendant and as, in any event the appellants are the nearest reversioners entitled to the succeed to the estate of Maya Gouda under Hindu Law, it cannot be stated that the line of Maya Gouda has become extinct so as to enable the plaintiff to recover possession of the properties. It is common ground that the Wat Hukum provides for the Nawa Wala taking possession of the properties if the family of a particular holder of Watan lands becomes Nashtamsha. The expression Nashtamsha has come up for consideration before the Courts in Kolhapur. The Supreme Court of Kolhapur, in Dada Babaji Patils case (supra) had to consider the question whether the expression Nashtamsha means complete and total absence of direct lineal heirs. In that decision, after the death of the holder, his widow inherited the lands and remained in possession till her death. On the death of the widow, the reversionary heirs of the deceased holder under Hindu law entered into possession of the properties. The plaintiff in that case, who had been registered as the Nawa Wala by the revenue authorities, sued to obtain possession of the lands and the claim of the plaintiff was allowed by the Court, holding that the existence of the reversionary heirs did not take the case out of Nashtamsha as provided in the Wat Hukum. The above decision was also followed in the same Court by Lokur, J., in S.A. 210 of 1947, who held that if there is no direct male descendant, then that case should be considered as Nashtamsha. We have already referred to the fact that these two decisions have been followed by the Trial Court as well as by the Assistant Judge on appeal.It is not necessary for us in this case to resolve the conflicting views noted above. Whatever may be the interpretation, the appellants will not be entitled to inherit the properties of Maya Gouda. Because, if the view of the Kolhapur Courts is accepted, the plaintiff, as the Nawa Wala, is entitled to get possession and if the Bombay view is accepted, it is the 7th defendant, who will be entitled to inherit the Watan properties of her father Maya Gouda. In either case, the appellants cannot inherit the Watan properties of Maya Gouda and thus they are out of the picture. The 7th defendant, against whom also a decree for possession has been passed, did not contest the claim of the plaintiff. Nor did she file any appeal against the decree of the Trial Court. It has to be further noted that even the appellants have not made her a party, either before the first Appellate Court, or in the High Court, or even before this
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UPSRTC Now Uttarakhand Transp. Corpn Vs. Satnam Singh | 1. Leave granted. 2. By filing this appeal, the appellant has challenged the legality of Judgment dated September 12, 2007 rendered by the learned Single Judge of the High Court Of Uttarakhand at Nainital in Appeal against award No. 744 of 2001 by which the award made under the provisions of Workman Compensation Act, 1923 in favour of the respondent for a sum of Rs. 1,43,796 with 6% interest thereon from the date of the accident is confirmed. 3. The respondent was employed as a driver with the appellant. He sustained personal injury on 8.1.95 arising out of and in the course of his employment with the appellant. Therefore, he filed W.C.A. No. 36 of 2000 before the Workman Compensation Commissioner and Regional Deputy Labour Commissioner, Kumaon Region, Haldwani, District Nainital for getting compensation under the provisions of the Workmens Compensation Act 1923. The same was allowed by award dated March 31, 2001. The operative part of the award reads as under : - "Since the Respondents were aware of the injuries received by Sh. Satnam Singh and about the said accident but they did not made payment of the compensation to the claimant within time, although the contention of the Respondent is that there has not been any loss of working capacity of the claimant nor the employer have made any deduction from his salary even then the claimant was entitled to receive the aforesaid amount of compensation on 08.01.1995. Since even after lapse of six years he has not received the amount of compensation hence he is entitled to receive the interest also from the employer.Therefore the Respondents are directed to deposit a sum of Rs. 1,43,796/- (Rs. One lac Forty three thousand seven hundred and ninety six only) alongwith interest @ 6% to the tune of Rs. 38,836/- within a period of one month from the date of the Judgment. In the event of default to deposit the said amount within prescribed period alongwith interest, necessary action for recovery will be made in accordance with law." 4. The award was challenged by the appellant before the High Court. The appeal was dismissed by the High Court vide judgment dated 12.09.2007 which has given rise to the instant appeal. 5. The only contention urged before this Court is that the direction given to the appellant to pay interest at the rate of 6%, on the amount of compensation, from the date of the accident deserves to be set aside in view of the decision of this Court in National Insurance Company Limited versus Mubasir Ahmed and Another (2007) 2 SCC 349 wherein it is held that the liability to pay the interest begins after one month from the date on which the compensation falls due and the compensation falls due on the date on which claim of the workman is adjudicated. 6. This Court has heard the learned counsel for the parties. 7. In National Insurance Co.Ltd.(supra), this Court has held that there is no indication in Section 4-A(1) as to when the compensation payable under Section 4 falls due and therefore it has to be taken that the compensation becomes due on the date on which the claim for compensation is adjudicated. In view of the above-mentioned judgment of this Court, the direction given by the Workman Compensation Commissioner which is confirmed by the High Court, requiring the appellant to pay the amount of compensation with 6% interest from the date of the accident will have to be substituted by the direction to the appellant to pay the amount of compensation with 6% interest from the date of the award made by the Workman Compensation Commissioner. 8. | 1[ds]In National Insurance Co.Ltd.(supra), this Court has held that there is no indication in Section 4-A(1) as to when the compensation payable under Section 4 falls due and therefore it has to be taken that the compensation becomes due on the date on which the claim for compensation is adjudicated. In view of the above-mentioned judgment of this Court, the direction given by the Workman Compensation Commissioner which is confirmed by the High Court, requiring the appellant to pay the amount of compensation with 6% interest from the date of the accident will have to be substituted by the direction to the appellant to pay the amount of compensation with 6% interest from the date of the award made by the Workman Compensation Commissioner. | 1 | 674 | 142 | ### Instruction:
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1. Leave granted. 2. By filing this appeal, the appellant has challenged the legality of Judgment dated September 12, 2007 rendered by the learned Single Judge of the High Court Of Uttarakhand at Nainital in Appeal against award No. 744 of 2001 by which the award made under the provisions of Workman Compensation Act, 1923 in favour of the respondent for a sum of Rs. 1,43,796 with 6% interest thereon from the date of the accident is confirmed. 3. The respondent was employed as a driver with the appellant. He sustained personal injury on 8.1.95 arising out of and in the course of his employment with the appellant. Therefore, he filed W.C.A. No. 36 of 2000 before the Workman Compensation Commissioner and Regional Deputy Labour Commissioner, Kumaon Region, Haldwani, District Nainital for getting compensation under the provisions of the Workmens Compensation Act 1923. The same was allowed by award dated March 31, 2001. The operative part of the award reads as under : - "Since the Respondents were aware of the injuries received by Sh. Satnam Singh and about the said accident but they did not made payment of the compensation to the claimant within time, although the contention of the Respondent is that there has not been any loss of working capacity of the claimant nor the employer have made any deduction from his salary even then the claimant was entitled to receive the aforesaid amount of compensation on 08.01.1995. Since even after lapse of six years he has not received the amount of compensation hence he is entitled to receive the interest also from the employer.Therefore the Respondents are directed to deposit a sum of Rs. 1,43,796/- (Rs. One lac Forty three thousand seven hundred and ninety six only) alongwith interest @ 6% to the tune of Rs. 38,836/- within a period of one month from the date of the Judgment. In the event of default to deposit the said amount within prescribed period alongwith interest, necessary action for recovery will be made in accordance with law." 4. The award was challenged by the appellant before the High Court. The appeal was dismissed by the High Court vide judgment dated 12.09.2007 which has given rise to the instant appeal. 5. The only contention urged before this Court is that the direction given to the appellant to pay interest at the rate of 6%, on the amount of compensation, from the date of the accident deserves to be set aside in view of the decision of this Court in National Insurance Company Limited versus Mubasir Ahmed and Another (2007) 2 SCC 349 wherein it is held that the liability to pay the interest begins after one month from the date on which the compensation falls due and the compensation falls due on the date on which claim of the workman is adjudicated. 6. This Court has heard the learned counsel for the parties. 7. In National Insurance Co.Ltd.(supra), this Court has held that there is no indication in Section 4-A(1) as to when the compensation payable under Section 4 falls due and therefore it has to be taken that the compensation becomes due on the date on which the claim for compensation is adjudicated. In view of the above-mentioned judgment of this Court, the direction given by the Workman Compensation Commissioner which is confirmed by the High Court, requiring the appellant to pay the amount of compensation with 6% interest from the date of the accident will have to be substituted by the direction to the appellant to pay the amount of compensation with 6% interest from the date of the award made by the Workman Compensation Commissioner. 8.
### Response:
1
### Explanation:
In National Insurance Co.Ltd.(supra), this Court has held that there is no indication in Section 4-A(1) as to when the compensation payable under Section 4 falls due and therefore it has to be taken that the compensation becomes due on the date on which the claim for compensation is adjudicated. In view of the above-mentioned judgment of this Court, the direction given by the Workman Compensation Commissioner which is confirmed by the High Court, requiring the appellant to pay the amount of compensation with 6% interest from the date of the accident will have to be substituted by the direction to the appellant to pay the amount of compensation with 6% interest from the date of the award made by the Workman Compensation Commissioner.
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State Of Rajasthan And Ors Vs. Sajjanlal Panjawat & Ors | purpose without reference to any special benefit to be conferred on the payer of the tax, that is to say, that the levy of tax Is for the purposes of general revenue, which when collected forms part of the public revenues of the State. A fee on the other hand is payment for a special benefit or privilege which the individual receives. It is regarded as a sort of a return or consideration for services rendered and should on the face of the legislative provision be correlated to the expenses incurred by Government in rendering the services.In that case Section 76 (1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) which related to the payment of annual contribution stated that it was for the purpose of properly administering the religious trusts and institutions wherever they existed. In determining whether that levy was a tax or a fee one of the material facts taken into consideration to negative the theory that it was a fee was that the money raised by levy of the contribution was not earmarked or specified for defraying the expenses that the Government had to incur in performing the services. All the collections went to the Consolidated Fund of the State and all the expenses had to be met not out of those collections but out of the general revenues by a proper method of appropriation as was done in case of other Government expenses. Though this was so it was nonetheless observed at p. 1044: "That in itself might not be conclusive". But as there was total absence of any correlation between the expenses incurred by the Government and the amount railed by contribution under the provision of S. 76, it was observed that the theory of a return or counter- payment or quid pro quo could not have any possible application to that case. This case was considered in Secy. Govt. of Madras Home Department v. Zenith Lamp and Electrical Ltd. CA No. 293 of 1967, D/10-11-1972 = (reported in AIR 1973 SC 724 e 1973 Tax LR 581) by the Constitution Bench of this Court, of which one of us (Dwivedi, J.) was a party. Sikri, C. J., referring to the observations of Mukherjea, J., in Sri Lakshmindra Thirtha Swamiars case 1954 SCR 1005 = (AIR 1954 SC 282 ) that the fact that collections went to the Consolidated Fund was not in itself conclusive thought that not much stress can be laid on this point, because Art. 266 of the Constitution requires that all revenues raised by the State shall form part of the Consolidated Fund. He considered the observations of the Privy Council in Attorney-General for British Columbia v. Esquimalt and Nanimo Rly Co., 1950 AC 87 and distinguished it, because the Privy Council did not have to deal with fees and taxes but interpreted the word taxation" in Section 22 of the Act therein considered, to mean a compulsory levy by the State. Whether it was fee or tax did not matter. The only question was whether it was a compulsory levy. In the Zenith Lamp and Electrical Ltds case it was found that there was not enough material to determine whether the fees taken in Courts under Entry No. 3 of List II of Schedule VII to the Constitution were taxes or fees namely, whether the State was making a profit out of the administration of civil justice or whether the amounts so collected from those fees were spent on the administration of civil justice. In that view the case was remanded to the High Court to decide whether the impugned fees were court-fees or taxes on litigants or litigation.41.The case of the State in this case is that the fee is a sort of contribution levied on public trusts towards meeting the expenses incurred by the State Government in rendering services to the public trusts through the agency of the Devasthan Department and that according to the budget provisions for the year 1964-65 the expenditure on the Devasthan Department was Rs. 2,76,715/- as against the income of only Rupees 3,000/for the same year from the registration fee. This averment in the reply of the Commissioner.Devasthan Department was not controverted by the petitioners either by a reply thereto or by any other material produced by them.In these circumstances, the mere fact that She amount was paid under R. 18 into the Consolidation Fund is by itself not sufficient to hold that the levy under Section 17 (3) of the Act is tax the income by way of fees is far below the expenditure incurred on the Devasthan Department, the levy would be a fee. In this view, Section 17 (3) cannot be held to be invalid and ultra vires the powers of State Legislature. We express no opinion on the question whether Section 17 (3) can be declared to be invalid on account of Rule 18 requiring the fee to be deposited in the State Consolidated Fund.42. In Civil Appeal No. 1647 of l967 the Act has been challenged on the grounds similar to these in the other appeals and no separate arguments were addressed, except those advanced by the respondents Advocate in the other appears this appeal also will be decided accordingly. The question whether the two temples which the State contended were public trusts and the Petitioner averred were his private property was not agitated before the High Court, as the petitioner was then content to have the matter disposed of in accordance with the decision in the Writ Petition which is the subject matter of the second set of appeals. It was open to him to have invited the High Court to give a finding on the question whether the two temples were his private property, but since he has not done so the question cannot be gone into in this appeal. The appropriate authority under the Act will however decide this question before applying the Act to these temples. | 1[ds]In our view, the question whether the temple is a Swetamber Jain temple or a Digamber Jain temple as contended by. the interveners does not arise for decision in these appeals firstly. because, if the management had vested in the State of Rajasthan under a preconstitution law and that law cannot be challenged under the Constitution, the right of the State to administer and manage the temple is unassailable; secondly, even if the right of the State to manage the temple after the Constitution came into force can be successfully challenged as offending the provisions of Arts. 25 and 26 of the Constitution, the management of the temple by the State will be held to be ultra vires sad illegal. And in that event the Court need not go further.In our view, however without going into the question whether the temple is a Swetamber or a Digamber Jain temple, it will be sufficient for us to consider whether the temple is a Jain temple, or as alleged by the State a Hindu temple, on a consideration of all the documents admitted, which the State has not, and cannot challenge, we have no doubt that Shri Rikhabdevji temple is a Jain temple and the State of Rajasthan has produced no evidence to the contrary to show that it is a Hindu temple where Jains of all sects as well as Hindus of all sects including the Bhils are allowed tosubmission, in our view, is not justified, because not only was it specifically Proclaimed that the Constitution was being promulgated, but by the notification of October 11, l947, it was further declared that the Constitution that was proclaimed on May 23, 1947, was amended that day, namely on October 11, 1947. It may further be pointed out that pursuant to the amendment an Advisory Body was constituted on March 20, 1948, with the Maharana as its President, Major General Rao Manohar Sinhaji as Vice-President and eight other members; named therein.From evidence it appears clear that for quite some time before the promulgation of these Constitutions the management of Shri Rikhabdevji temple had been taken over by-the erstwhile Ruler of Udaipur State, and by virtue of the Constitutions it had finally vested in the-State and was-being managed by the Maharana with the Advisory Body.The Constitutions under which the properties and management of the temple had vested in the Ruler, and thereafter in the State continued to be law by virtue of Art. 372 of the Constitution till it was repealed by the impugned Act. Since the respondents lost the right to manage and administer the temple and its properties prior to the Constitution by a valid law, they cannot now regain that right on the plea that that law contravenes the right guaranteed under Art. 26 (d) of the Constitution.Bearing in mind the scope of clauses (b) and (d) of Art. 26 as expounded in the decisions of this Court if, as we have held, the right of management of Rikhabdevji temple is lost as it is vested in the State, the respondents cannot complain of any infringement of their fundamental rights to manage and administer its affairs, and as such the High Court was in error in giving the impugned directions. In the view we have taken, the validity of the provisions of the Act which have been challenged does not fall for consideration in the first set of appeals and it has also been so held by the Highthe above text it appears to us clear that there is no prohibition from increasing the Deva-Dravya. On the other hand it permits the increase of Deva-Dravya though not by the methods specifically enumerated therein. Even in respect of these prohibited methods exceptions have been permitted. The State can, therefore, by law relating to the administration of the public trusts direct the investment of properties of the trust in a specified manner and in specific investments so as to protect the corpus from being dissipated or depreciated and to assure a regularour view, this contention has no validity. What was injuncted was that investments will no be made by the trustees themselves for the purposes forbidden in the scriptures.From this it cannot be inferred that the Jain religion has forbidden the deposit in banks or any institutions mentioned in S. 30 of the Act. We think that such an argument is far-fetched.This rule provides that for the purpose of ascertaining the wishes of the persons interested under sub-sec. (5) of Section 53, the State Government shall direct the Assistant Commissioner to issue a public notice in such manner as he may think proper for inviting suggestions for the constitution of the Committee of management. The Assistant Commissioner, shall forward the suggestions so received along with his comments, to the State Government through the Commissioner. The State Government may thereafter vest the management of a public religious trust under subs. (1) of Section 53 in a Committee so appointed under sub-s. (5) of that section. We are not relying on this rule for testing the constitutionality of S. 53 (5).In our view, the hypothesis on which the High Court has based its conclusions is not warranted by the provisions of sub-s. (5) of S. 53 of the Act. In the first category, apart from the Committee being constituted from amongst the trustees of public trusts representing the same religion the Committee can also be constituted from amongst the trustees of the same persuasion. The significance of the word persuasion and what it connotes does not seem to have been considered by the High Court. The word persuasion is a synonym of faith, creed, denomination religion etc. Websters Third New International Dictionary Vol. II, p. 1688, gives the meaning of "persuasion" among others (a) as "a system of religious or other beliefs (the several protestants.......... );(b) a group, faction, sect, or party that adheres to a particular system of beliefs or ideas or promotes a particular view, theory, or cause...". The same dictionary in Vol. I gives the meaning of "denomination" at p. 602 as "a religious group of a community of believers called by the same name." In other words in the first category also a Committee can be appointed from persons of the denomination to which the trust belongs as in the second category with this difference that in the first category if the State Government chooses, it can appoint it from the trustees representing that denomination or persuasion while in the third category from amongst the persons who belong to the said denomination who may not be trustees as such. It is significant to note that persons interested falling in the second category have been defined by sub-s. (9) of Section a as including for the purposes of temples and maths in clauses (a) and (b), namely; (a) in the case of a temple, a Person who is entitled to attend or is in the habit of attending the performance of worship or service in the temple or who is entitled to partaking or is in the habit of partaking in the distribution of gifts thereof, (b) in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs". Even where the persons interested satisfy the above requirements the additional requirement of clause (b) of sub-e. (5) of S. 53 is that such persons must be also persons for whose benefit the trust was founded.A reading of clause (a) of sub-s. (5) clearly indicates that the trustees must represent the concerned religion or persuasion, which includes a denomination. It could not have been the intention to appoint a Committee of management comprising trustees of a public trust of a particular religion or persuasion who do not belong to that religion or persuasion or denomination. Nor does clause (b) of sub-e. (5) of Section 53 empower persons who do not belong in a denomination to be appointed to a public trust of that denomination. Again the word "denomination" is wide enough to include sections thereof, and it cannot therefore be said. as the High Court seems to assume, that a section of the denomination managing the property may not be the same as trustees of public trusts representing the same religion, even if the public trust has the same object as that of the public trust the management of which is being transferred to the Committee. If Section 53 (5) (a) is read in the manner suggested by us, as it should be, the difficulties pointed out by the High Court would not arise at all.37. It appears to us, therefore that merely because the provisions of sub-e. (5) of Section 53 enable the Government to appoint a Committee from the two categories specified in that clause. it does not mean that the Government wiI1 appoint or can appoint persons who are not constitutionally entitled to be appointed to that particular trust. If the temple is a Swetamber temple, merely - because the Digambers, like Swetambers, are also Jains, it does not empower the Government to appoint them as a Chairman and members of the Committee of management. The very fact that the Legislature has provided fort the ascertainment of the general wishes of the persons interested is a positive direction to the State Government to take those wishes into consideration in the manner to be prescribed by the Rules framed under the Act. This provision furnishes, in our view, a safeguard against the appointment of the Chairman and the members of the Committee to manage the trusts, who do not subscribe or adhere to the tenants of a particular religion or denomination to which the trust belongs. No such appointment can be made which contravenes the fundamental rights guaranteed under Arts. 25 and 26 of the Constitution, and if any such appointment is made, those who have a right to challenge it can do so and have the appointment struck down. In this view clause (e) of sub-s. (1) of S. 52 read with sub- s. (5) of S. 53 as interpreted by us cannot be held to becase of the State in this case is that the fee is a sort of contribution levied on public trusts towards meeting the expenses incurred by the State Government in rendering services to the public trusts through the agency of the Devasthan Department and that according to the budget provisions for the year 1964-65 the expenditure on the Devasthan Department was Rs. 2,76,715/- as against the income of only Rupees 3,000/for the same year from the registration fee. This averment in the reply of the Commissioner.Devasthan Department was not controverted by the petitioners either by a reply thereto or by any other material produced by them.In these circumstances, the mere fact that She amount was paid under R. 18 into the Consolidation Fund is by itself not sufficient to hold that the levy under Section 17 (3) of the Act is tax the income by way of fees is far below the expenditure incurred on the Devasthan Department, the levy would be a fee. In this view, Section 17 (3) cannot be held to be invalid and ultra vires the powers of State Legislature. We express no opinion on the question whether Section 17 (3) can be declared to be invalid on account of Rule 18 requiring the fee to be deposited in the State Consolidated Fund.42. In Civil Appeal No. 1647 of l967 the Act has been challenged on the grounds similar to these in the other appeals and no separate arguments were addressed, except those advanced by the respondents Advocate in the other appears this appeal also will be decided accordingly. The question whether the two temples which the State contended were public trusts and the Petitioner averred were his private property was not agitated before the High Court, as the petitioner was then content to have the matter disposed of in accordance with the decision in the Writ Petition which is the subject matter of the second set of appeals. It was open to him to have invited the High Court to give a finding on the question whether the two temples were his private property, but since he has not done so the question cannot be gone into in this appeal. The appropriate authority under the Act will however decide this question before applying the Act to these temples. | 1 | 14,342 | 2,293 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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purpose without reference to any special benefit to be conferred on the payer of the tax, that is to say, that the levy of tax Is for the purposes of general revenue, which when collected forms part of the public revenues of the State. A fee on the other hand is payment for a special benefit or privilege which the individual receives. It is regarded as a sort of a return or consideration for services rendered and should on the face of the legislative provision be correlated to the expenses incurred by Government in rendering the services.In that case Section 76 (1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) which related to the payment of annual contribution stated that it was for the purpose of properly administering the religious trusts and institutions wherever they existed. In determining whether that levy was a tax or a fee one of the material facts taken into consideration to negative the theory that it was a fee was that the money raised by levy of the contribution was not earmarked or specified for defraying the expenses that the Government had to incur in performing the services. All the collections went to the Consolidated Fund of the State and all the expenses had to be met not out of those collections but out of the general revenues by a proper method of appropriation as was done in case of other Government expenses. Though this was so it was nonetheless observed at p. 1044: "That in itself might not be conclusive". But as there was total absence of any correlation between the expenses incurred by the Government and the amount railed by contribution under the provision of S. 76, it was observed that the theory of a return or counter- payment or quid pro quo could not have any possible application to that case. This case was considered in Secy. Govt. of Madras Home Department v. Zenith Lamp and Electrical Ltd. CA No. 293 of 1967, D/10-11-1972 = (reported in AIR 1973 SC 724 e 1973 Tax LR 581) by the Constitution Bench of this Court, of which one of us (Dwivedi, J.) was a party. Sikri, C. J., referring to the observations of Mukherjea, J., in Sri Lakshmindra Thirtha Swamiars case 1954 SCR 1005 = (AIR 1954 SC 282 ) that the fact that collections went to the Consolidated Fund was not in itself conclusive thought that not much stress can be laid on this point, because Art. 266 of the Constitution requires that all revenues raised by the State shall form part of the Consolidated Fund. He considered the observations of the Privy Council in Attorney-General for British Columbia v. Esquimalt and Nanimo Rly Co., 1950 AC 87 and distinguished it, because the Privy Council did not have to deal with fees and taxes but interpreted the word taxation" in Section 22 of the Act therein considered, to mean a compulsory levy by the State. Whether it was fee or tax did not matter. The only question was whether it was a compulsory levy. In the Zenith Lamp and Electrical Ltds case it was found that there was not enough material to determine whether the fees taken in Courts under Entry No. 3 of List II of Schedule VII to the Constitution were taxes or fees namely, whether the State was making a profit out of the administration of civil justice or whether the amounts so collected from those fees were spent on the administration of civil justice. In that view the case was remanded to the High Court to decide whether the impugned fees were court-fees or taxes on litigants or litigation.41.The case of the State in this case is that the fee is a sort of contribution levied on public trusts towards meeting the expenses incurred by the State Government in rendering services to the public trusts through the agency of the Devasthan Department and that according to the budget provisions for the year 1964-65 the expenditure on the Devasthan Department was Rs. 2,76,715/- as against the income of only Rupees 3,000/for the same year from the registration fee. This averment in the reply of the Commissioner.Devasthan Department was not controverted by the petitioners either by a reply thereto or by any other material produced by them.In these circumstances, the mere fact that She amount was paid under R. 18 into the Consolidation Fund is by itself not sufficient to hold that the levy under Section 17 (3) of the Act is tax the income by way of fees is far below the expenditure incurred on the Devasthan Department, the levy would be a fee. In this view, Section 17 (3) cannot be held to be invalid and ultra vires the powers of State Legislature. We express no opinion on the question whether Section 17 (3) can be declared to be invalid on account of Rule 18 requiring the fee to be deposited in the State Consolidated Fund.42. In Civil Appeal No. 1647 of l967 the Act has been challenged on the grounds similar to these in the other appeals and no separate arguments were addressed, except those advanced by the respondents Advocate in the other appears this appeal also will be decided accordingly. The question whether the two temples which the State contended were public trusts and the Petitioner averred were his private property was not agitated before the High Court, as the petitioner was then content to have the matter disposed of in accordance with the decision in the Writ Petition which is the subject matter of the second set of appeals. It was open to him to have invited the High Court to give a finding on the question whether the two temples were his private property, but since he has not done so the question cannot be gone into in this appeal. The appropriate authority under the Act will however decide this question before applying the Act to these temples.
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trustees representing that denomination or persuasion while in the third category from amongst the persons who belong to the said denomination who may not be trustees as such. It is significant to note that persons interested falling in the second category have been defined by sub-s. (9) of Section a as including for the purposes of temples and maths in clauses (a) and (b), namely; (a) in the case of a temple, a Person who is entitled to attend or is in the habit of attending the performance of worship or service in the temple or who is entitled to partaking or is in the habit of partaking in the distribution of gifts thereof, (b) in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs". Even where the persons interested satisfy the above requirements the additional requirement of clause (b) of sub-e. (5) of S. 53 is that such persons must be also persons for whose benefit the trust was founded.A reading of clause (a) of sub-s. (5) clearly indicates that the trustees must represent the concerned religion or persuasion, which includes a denomination. It could not have been the intention to appoint a Committee of management comprising trustees of a public trust of a particular religion or persuasion who do not belong to that religion or persuasion or denomination. Nor does clause (b) of sub-e. (5) of Section 53 empower persons who do not belong in a denomination to be appointed to a public trust of that denomination. Again the word "denomination" is wide enough to include sections thereof, and it cannot therefore be said. as the High Court seems to assume, that a section of the denomination managing the property may not be the same as trustees of public trusts representing the same religion, even if the public trust has the same object as that of the public trust the management of which is being transferred to the Committee. If Section 53 (5) (a) is read in the manner suggested by us, as it should be, the difficulties pointed out by the High Court would not arise at all.37. It appears to us, therefore that merely because the provisions of sub-e. (5) of Section 53 enable the Government to appoint a Committee from the two categories specified in that clause. it does not mean that the Government wiI1 appoint or can appoint persons who are not constitutionally entitled to be appointed to that particular trust. If the temple is a Swetamber temple, merely - because the Digambers, like Swetambers, are also Jains, it does not empower the Government to appoint them as a Chairman and members of the Committee of management. The very fact that the Legislature has provided fort the ascertainment of the general wishes of the persons interested is a positive direction to the State Government to take those wishes into consideration in the manner to be prescribed by the Rules framed under the Act. This provision furnishes, in our view, a safeguard against the appointment of the Chairman and the members of the Committee to manage the trusts, who do not subscribe or adhere to the tenants of a particular religion or denomination to which the trust belongs. No such appointment can be made which contravenes the fundamental rights guaranteed under Arts. 25 and 26 of the Constitution, and if any such appointment is made, those who have a right to challenge it can do so and have the appointment struck down. In this view clause (e) of sub-s. (1) of S. 52 read with sub- s. (5) of S. 53 as interpreted by us cannot be held to becase of the State in this case is that the fee is a sort of contribution levied on public trusts towards meeting the expenses incurred by the State Government in rendering services to the public trusts through the agency of the Devasthan Department and that according to the budget provisions for the year 1964-65 the expenditure on the Devasthan Department was Rs. 2,76,715/- as against the income of only Rupees 3,000/for the same year from the registration fee. This averment in the reply of the Commissioner.Devasthan Department was not controverted by the petitioners either by a reply thereto or by any other material produced by them.In these circumstances, the mere fact that She amount was paid under R. 18 into the Consolidation Fund is by itself not sufficient to hold that the levy under Section 17 (3) of the Act is tax the income by way of fees is far below the expenditure incurred on the Devasthan Department, the levy would be a fee. In this view, Section 17 (3) cannot be held to be invalid and ultra vires the powers of State Legislature. We express no opinion on the question whether Section 17 (3) can be declared to be invalid on account of Rule 18 requiring the fee to be deposited in the State Consolidated Fund.42. In Civil Appeal No. 1647 of l967 the Act has been challenged on the grounds similar to these in the other appeals and no separate arguments were addressed, except those advanced by the respondents Advocate in the other appears this appeal also will be decided accordingly. The question whether the two temples which the State contended were public trusts and the Petitioner averred were his private property was not agitated before the High Court, as the petitioner was then content to have the matter disposed of in accordance with the decision in the Writ Petition which is the subject matter of the second set of appeals. It was open to him to have invited the High Court to give a finding on the question whether the two temples were his private property, but since he has not done so the question cannot be gone into in this appeal. The appropriate authority under the Act will however decide this question before applying the Act to these temples.
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M.D. Karnataka Forest Development Corporation Vs. Workmen Karnataka Pulpwood Limited & Others | be borne by the Government. 13. We may, however, place on record that during the pendency of this SLP, a meeting was held on 21-6-2006 in regard to the claim of absorption of the workmen concerned wherein it was resolved: "Agreeing with the views of Sri. Sogadu Shivanna MLA and others, the Honble Minister instructed that the following action be taken immediately:-1) Necessary action to be initiated to withdrawn the SLOP filed before the Hobble Supreme Court on the High Court order dated 22-6-2005 by following necessary procedure without taking much time for the same and after this action to be initiated to absorb these 81 employees.Action: Managing Director, AFDC Limited and Principal Secretary, FEE"2) Arrears of differential salary on account of release of increments and D.A. be released to the employees at an early date.Action: Managing Director KFDC Limited and Principal Secretary, FEE3) Any dues to be settled to VRS opted such as difference in ex-gratia etc. be settled without giving scope for the APL employees to approach Court of law again.Action: Managing Director, AFDC Limited and Principal Secretary, FEEAll the officers present in the meeting assured their full Co-operation in solving these issues in a time bound manner." 14. We are informed by Mr. Sanjay Hegde, the learned counsel appearing on behalf of the Government of Karnataka that the question of absorption of the retrenched employees in the applicant-Corporation is pending before the Cabinet. We do not intend to make any observation as regards consequence arising there from. 15. Mr. Naveen R. Nath, learned Counsel appearing on behalf of the respondents would submit that the State of Karnataka as also the appellant Corporation had all along been representing to the workman that services of those employees who have been working under the company would be absorbed by the Corporation and in that view of the matter, this Court should not interfere with the impugned judgment.It was furthermore contended that the State as also the Corporation had allowed the order of the learned Single Judge dated 28-1-2005 passed in Writ Petition No.3530-3533 of 2005 to attain finality and in that view of the matter, there is absolutely no reason as to why the other workmen would not be treated at par with them. 16. It is unfortunate that the State of Karnataka as also Appellant-Corporation did not specifically take one stand or the other. It has been prevaricating its stand from state to stage. The provisions of the Industrial Disputes Act, 1947, govern the relationship between the company and the respondents being employer and workmen. The Management of an industrial undertaking is entitled to take recourse to closure of its undertaking in terms of the provisions of the said Act itself. Section 25-o of the said Act lays down the procedure for closing down an undertaking. Once the State Government had given the permission, all consequences would ensue. In terms of sub-Section (8) of Section 25-o, all the workmen would be entitled to receive compensation, which shall be equivalent to 15 days average, pay for every completed year of continuous service or any part thereof in excess of six months. Section 25-S provides that in relation to a closure of an undertaking governed by Chapter V-B, the provisions of Sections 25-B, 25-D, 25-E, 25-F, 25-G, 25-H and 25 would also apply. Section 25-J provides that the provisions of Chapter VA shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Indisputably in the event an undertaking is closed down, the only right, which accrues in favour of the workmen, is to obtain compensation as provided for. We may notice that sub-Section (4) of Section 25-o provides that an order of the appropriate Government is final and binding on the parties. 17. Before the Division Bench of the High Court as we have noticed here in before, the order of the State Government directing prior permission for effecting closure of the industrial undertaking has not been questioned. In fact even the learned Single Judge had made observations to the effect that the closure may be affected. Having regard to the fact those rights of the workmen flow from the provisions of the Industrial Disputes Act, a writ Court could not have issued any other direction. One of the questions, which had arisen for consideration before the Division Bench was as to whether the order of the State Government dated 24-10-1991, subsists. For considering the said question, it was not necessary for the High Court to ascertain the viewpoint of the State. In the year 1991, a decision was taken not to close down the undertaking of the company. The 1991 decision was modified by a subsequent order that the undertakings also as that of the company are merging with each other. No order of merger has been passed. No decision by a competent authority under the Companies Act had been taken Indisputably, the appellant and the company has not merged. In absence of any valid order of merger of two different entities, evidently the relationship of employer and employee between the respondents and the said company, as had been obtaining, continued. Furthermore, as soon as the closure of an undertaking became effective, it is trite that the said relationship ceased to exist.18. The right of the workmen therefore, was only to receive the amount of compensation. If the State is not in a position to take upon itself the financial burden of the appellant-Corporation for appointing the concerned workmen direction to continue their services could not be issued. There cannot be any doubt whatsoever that the said order dated 24-10-1991 has been superseded by necessary implication. Both merger of two undertakings and the closure of one undertaking do not stand, together. If the workmen, therefore, think that any other or further right has accrued to them in terms of the purported assurance given by the State, it may take recourse thereto before an appropriate forum but a writ petition was not maintainable. | 1[ds]16. It is unfortunate that the State of Karnataka as alsodid not specifically take one stand or the other. It has been prevaricating its stand from state to stage. The provisions of the Industrial Disputes Act, 1947, govern the relationship between the company and the respondents being employer and workmen. The Management of an industrial undertaking is entitled to take recourse to closure of its undertaking in terms of the provisions of the said Act itself. Sectionof the said Act lays down the procedure for closing down anregard to the fact those rights of the workmen flow from the provisions of the Industrial Disputes Act, a writ Court could not have issued any otherthe year 1991, a decision was taken not to close down the undertaking of the company. The 1991 decision was modified by a subsequent order that the undertakings also as that of the company are merging with each other. No order of merger has been passed. No decision by a competent authority under the Companies Act had been taken Indisputably, the appellant and the company has not merged. In absence of any valid order of merger of two different entities, evidently the relationship of employer and employee between the respondents and the said company, as had been obtaining, continued. Furthermore, as soon as the closure of an undertaking became effective, it is trite that the said relationship ceased to exist.18. The right of the workmen therefore, was only to receive the amount of compensation. If the State is not in a position to take upon itself the financial burden of thefor appointing the concerned workmen direction to continue their services could not be issued. There cannot be any doubt whatsoever that the said order datedhas been superseded by necessary implication. Both merger of two undertakings and the closure of one undertaking do not stand, together. If the workmen, therefore, think that any other or further right has accrued to them in terms of the purported assurance given by the State, it may take recourse thereto before an appropriate forum but a writ petition was not maintainable. | 1 | 3,407 | 385 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
be borne by the Government. 13. We may, however, place on record that during the pendency of this SLP, a meeting was held on 21-6-2006 in regard to the claim of absorption of the workmen concerned wherein it was resolved: "Agreeing with the views of Sri. Sogadu Shivanna MLA and others, the Honble Minister instructed that the following action be taken immediately:-1) Necessary action to be initiated to withdrawn the SLOP filed before the Hobble Supreme Court on the High Court order dated 22-6-2005 by following necessary procedure without taking much time for the same and after this action to be initiated to absorb these 81 employees.Action: Managing Director, AFDC Limited and Principal Secretary, FEE"2) Arrears of differential salary on account of release of increments and D.A. be released to the employees at an early date.Action: Managing Director KFDC Limited and Principal Secretary, FEE3) Any dues to be settled to VRS opted such as difference in ex-gratia etc. be settled without giving scope for the APL employees to approach Court of law again.Action: Managing Director, AFDC Limited and Principal Secretary, FEEAll the officers present in the meeting assured their full Co-operation in solving these issues in a time bound manner." 14. We are informed by Mr. Sanjay Hegde, the learned counsel appearing on behalf of the Government of Karnataka that the question of absorption of the retrenched employees in the applicant-Corporation is pending before the Cabinet. We do not intend to make any observation as regards consequence arising there from. 15. Mr. Naveen R. Nath, learned Counsel appearing on behalf of the respondents would submit that the State of Karnataka as also the appellant Corporation had all along been representing to the workman that services of those employees who have been working under the company would be absorbed by the Corporation and in that view of the matter, this Court should not interfere with the impugned judgment.It was furthermore contended that the State as also the Corporation had allowed the order of the learned Single Judge dated 28-1-2005 passed in Writ Petition No.3530-3533 of 2005 to attain finality and in that view of the matter, there is absolutely no reason as to why the other workmen would not be treated at par with them. 16. It is unfortunate that the State of Karnataka as also Appellant-Corporation did not specifically take one stand or the other. It has been prevaricating its stand from state to stage. The provisions of the Industrial Disputes Act, 1947, govern the relationship between the company and the respondents being employer and workmen. The Management of an industrial undertaking is entitled to take recourse to closure of its undertaking in terms of the provisions of the said Act itself. Section 25-o of the said Act lays down the procedure for closing down an undertaking. Once the State Government had given the permission, all consequences would ensue. In terms of sub-Section (8) of Section 25-o, all the workmen would be entitled to receive compensation, which shall be equivalent to 15 days average, pay for every completed year of continuous service or any part thereof in excess of six months. Section 25-S provides that in relation to a closure of an undertaking governed by Chapter V-B, the provisions of Sections 25-B, 25-D, 25-E, 25-F, 25-G, 25-H and 25 would also apply. Section 25-J provides that the provisions of Chapter VA shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Indisputably in the event an undertaking is closed down, the only right, which accrues in favour of the workmen, is to obtain compensation as provided for. We may notice that sub-Section (4) of Section 25-o provides that an order of the appropriate Government is final and binding on the parties. 17. Before the Division Bench of the High Court as we have noticed here in before, the order of the State Government directing prior permission for effecting closure of the industrial undertaking has not been questioned. In fact even the learned Single Judge had made observations to the effect that the closure may be affected. Having regard to the fact those rights of the workmen flow from the provisions of the Industrial Disputes Act, a writ Court could not have issued any other direction. One of the questions, which had arisen for consideration before the Division Bench was as to whether the order of the State Government dated 24-10-1991, subsists. For considering the said question, it was not necessary for the High Court to ascertain the viewpoint of the State. In the year 1991, a decision was taken not to close down the undertaking of the company. The 1991 decision was modified by a subsequent order that the undertakings also as that of the company are merging with each other. No order of merger has been passed. No decision by a competent authority under the Companies Act had been taken Indisputably, the appellant and the company has not merged. In absence of any valid order of merger of two different entities, evidently the relationship of employer and employee between the respondents and the said company, as had been obtaining, continued. Furthermore, as soon as the closure of an undertaking became effective, it is trite that the said relationship ceased to exist.18. The right of the workmen therefore, was only to receive the amount of compensation. If the State is not in a position to take upon itself the financial burden of the appellant-Corporation for appointing the concerned workmen direction to continue their services could not be issued. There cannot be any doubt whatsoever that the said order dated 24-10-1991 has been superseded by necessary implication. Both merger of two undertakings and the closure of one undertaking do not stand, together. If the workmen, therefore, think that any other or further right has accrued to them in terms of the purported assurance given by the State, it may take recourse thereto before an appropriate forum but a writ petition was not maintainable.
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16. It is unfortunate that the State of Karnataka as alsodid not specifically take one stand or the other. It has been prevaricating its stand from state to stage. The provisions of the Industrial Disputes Act, 1947, govern the relationship between the company and the respondents being employer and workmen. The Management of an industrial undertaking is entitled to take recourse to closure of its undertaking in terms of the provisions of the said Act itself. Sectionof the said Act lays down the procedure for closing down anregard to the fact those rights of the workmen flow from the provisions of the Industrial Disputes Act, a writ Court could not have issued any otherthe year 1991, a decision was taken not to close down the undertaking of the company. The 1991 decision was modified by a subsequent order that the undertakings also as that of the company are merging with each other. No order of merger has been passed. No decision by a competent authority under the Companies Act had been taken Indisputably, the appellant and the company has not merged. In absence of any valid order of merger of two different entities, evidently the relationship of employer and employee between the respondents and the said company, as had been obtaining, continued. Furthermore, as soon as the closure of an undertaking became effective, it is trite that the said relationship ceased to exist.18. The right of the workmen therefore, was only to receive the amount of compensation. If the State is not in a position to take upon itself the financial burden of thefor appointing the concerned workmen direction to continue their services could not be issued. There cannot be any doubt whatsoever that the said order datedhas been superseded by necessary implication. Both merger of two undertakings and the closure of one undertaking do not stand, together. If the workmen, therefore, think that any other or further right has accrued to them in terms of the purported assurance given by the State, it may take recourse thereto before an appropriate forum but a writ petition was not maintainable.
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Mukesh Vs. State Of Bihar | L. Nageswara Rao, J.1. Leave granted.2. The Appellants are children of Government employees who died in harness. They applied for appointment to Class III Government posts on the basis of instructions governing compassionate appointments. The competent authority recommended the appointment of some of the Appellants in Class III posts. However, they were appointed on fixed pay as Prakhand Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. The Writ Petitions filed by them were allowed and the Respondents were directed to appoint them in Class III or Class IV posts or to pay them regular pay scales in the post of Assistant Teacher. The Appeals filed by the Government challenging the said judgment in the writ applications were allowed. The Appellants who have challenged the judgment of the Division Bench of the High Court in these Appeals submitted that they are covered by a judgment of this Court in Vishwanath Pandey v. State of Bihar and Others, reported in (2013) 10 SCC 545. Vishwanath Pandey who was similarly situated to the Appellants succeeded in the Writ Petition filed by him for appointment on a regular pay scale. However, the said judgment was reversed by a Division Bench. By the aforementioned judgment, the Appeal filed by Vishwanath Pandey was allowed by this Court holding thus:-"8. We have heard the learned counsel for the parties and scrutinised the records. It is not in dispute that even though the District Compassionate Committee had made recommendations on 29-11-2005 that the appellant may be appointed on a Class III post, he was not given appointment because of the ban imposed by the State Government. It is also not in dispute that after lifting of the ban, the District Compassionate Committee recommended the appellants appointment as teacher on compassionate ground and he was appointed against the vacant post by the District Superintendent of Education, Buxar. That order was neither rescinded nor modified by the competent authority on the premise that after coming into force of the 2006 Rules, the appellant could have been appointed only by the Panchayat Samiti on the post of Prakhand Teacher. Therefore, the Division Bench of the High Court was not at all justified in recording a finding that the appellant could have been appointed only as a Prakhand Teacher by the Panchayat Samiti on fixed pay. Unfortunately, the Division Bench overlooked the fact that the appellant had been appointed as per the policy of compassionate appointment framed by the State Government and that policy does not envisage the appointment of the dependant of a deceased employee on fixed pay."3. By the impugned judgment, a Division Bench of the High Court correctly held that the Appellants have no legal right to seek appointment on compassionate grounds. Compassionate appointments are not a source of recruitment and they are made to provide succour to the family of an employee who dies in harness. In the State of Bihar compassionate appointments are governed by instructions issued by the Government. Some of the Appellants were recommended for appointment to Class III posts on a regular basis by the District Compassionate Committee. However, they were appointed as Prakhand Teachers/Panchayat Shikshaks/ Nagar Shikshaks, etc. on a fixed pay. The Appellants could not have been appointed on a fixed pay and they are entitled for appointment to either on Class III or Class IV posts on regular basis or payment of regular pay scale in the posts of as Prakhand Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. in which they are working at present. Some of the Appellants who were recommended for appointment to Class III posts but were appointed as Prakhand Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. on fixed pay are similarly situated to Vishwanath Pandey and they are entitled to be appointed on a regular pay scale.4. The other Appellants who were appointed after 01.07.2006 are not entitled to the relief granted to those who were recommended for appointment to Class III or Class IV posts prior to that date. A Full Bench of the Patna High Court in State of Bihar and Others v. Rajeev Ran Vijay Kumar, reported in (2010) 3 PLJR 294 (FB), held that the dependents of deceased Government employees do not have a legal right to be appointed in Government posts. Their appointments on compassionate grounds shall be in accordance with Bihar Panchayat Primary Teacher (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as the `Rules) which came into force w.e.f. 01.07.2006. Rule 10 of the said Rules provides for employment on compassionate grounds to the dependents of teaching/ non-teaching employees against available vacancies of Panchayat Teachers/Block Teachers/Prakhand Teachers, etc. Such appointments can be made only on a fixed pay by the committee constituted under the Rules. The Appellants who have not been recommended for appointment to Class III or Class IV posts prior to 01.07.2006 are not covered by Vishwanath Pandeys case (supra). On the other hand, they are squarely covered by the judgment of Full Bench of the Patna High Court. They are not similarly situated to those who were recommended for appointment to Class III posts prior to 01.07.2006. The Appellants, who were appointed after 01.07.2006, the date on which the Rules came into force, are not entitled to claim appointment on regular pay scales. It is relevant to note that the judgment of the Full Bench of the High Court of Patna was challenged before this Court. The said SLP was withdrawn with liberty granted to the petitioners therein to approach the Government for suitable relief.5. | 1[ds]By the impugned judgment, a Division Bench of the High Court correctly held that the Appellants have no legal right to seek appointment on compassionate grounds. Compassionate appointments are not a source of recruitment and they are made to provide succour to the family of an employee who dies in harness. In the State of Bihar compassionate appointments are governed by instructions issued by the Government. Some of the Appellants were recommended for appointment to Class III posts on a regular basis by the District Compassionate Committee. However, they were appointed as Prakhand Teachers/Panchayat Shikshaks/ Nagar Shikshaks, etc. on a fixed pay. The Appellants could not have been appointed on a fixed pay and they are entitled for appointment to either on Class III or Class IV posts on regular basis or payment of regular pay scale in the posts of as Prakhand Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. in which they are working at present. Some of the Appellants who were recommended for appointment to Class III posts but were appointed as Prakhand Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. on fixed pay are similarly situated to Vishwanath Pandey and they are entitled to be appointed on a regular pay scale.The other Appellants who were appointed after 01.07.2006 are not entitled to the relief granted to those who were recommended for appointment to Class III or Class IV posts prior to that date. A Full Bench of the Patna High Court in State of Bihar and Others v. Rajeev Ran Vijay Kumar, reported in (2010) 3 PLJR 294 (FB), held that the dependents of deceased Government employees do not have a legal right to be appointed in Government posts. Their appointments on compassionate grounds shall be in accordance with Bihar Panchayat Primary Teacher (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as the `Rules) which came into force w.e.f. 01.07.2006. Rule 10 of the said Rules provides for employment on compassionate grounds to the dependents of teaching/employees against available vacancies of Panchayat Teachers/Block Teachers/Prakhand Teachers, etc. Such appointments can be made only on a fixed pay by the committee constituted under the Rules. The Appellants who have not been recommended for appointment to Class III or Class IV posts prior to 01.07.2006 are not covered by Vishwanath Pandeys case (supra). On the other hand, they are squarely covered by the judgment of Full Bench of the Patna High Court. They are not similarly situated to those who were recommended for appointment to Class III posts prior to 01.07.2006. The Appellants, who were appointed after 01.07.2006, the date on which the Rules came into force, are not entitled to claim appointment on regular pay scales. It is relevant to note that the judgment of the Full Bench of the High Court of Patna was challenged before this Court. The said SLP was withdrawn with liberty granted to the petitioners therein to approach the Government for suitable relief. | 1 | 993 | 532 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
L. Nageswara Rao, J.1. Leave granted.2. The Appellants are children of Government employees who died in harness. They applied for appointment to Class III Government posts on the basis of instructions governing compassionate appointments. The competent authority recommended the appointment of some of the Appellants in Class III posts. However, they were appointed on fixed pay as Prakhand Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. The Writ Petitions filed by them were allowed and the Respondents were directed to appoint them in Class III or Class IV posts or to pay them regular pay scales in the post of Assistant Teacher. The Appeals filed by the Government challenging the said judgment in the writ applications were allowed. The Appellants who have challenged the judgment of the Division Bench of the High Court in these Appeals submitted that they are covered by a judgment of this Court in Vishwanath Pandey v. State of Bihar and Others, reported in (2013) 10 SCC 545. Vishwanath Pandey who was similarly situated to the Appellants succeeded in the Writ Petition filed by him for appointment on a regular pay scale. However, the said judgment was reversed by a Division Bench. By the aforementioned judgment, the Appeal filed by Vishwanath Pandey was allowed by this Court holding thus:-"8. We have heard the learned counsel for the parties and scrutinised the records. It is not in dispute that even though the District Compassionate Committee had made recommendations on 29-11-2005 that the appellant may be appointed on a Class III post, he was not given appointment because of the ban imposed by the State Government. It is also not in dispute that after lifting of the ban, the District Compassionate Committee recommended the appellants appointment as teacher on compassionate ground and he was appointed against the vacant post by the District Superintendent of Education, Buxar. That order was neither rescinded nor modified by the competent authority on the premise that after coming into force of the 2006 Rules, the appellant could have been appointed only by the Panchayat Samiti on the post of Prakhand Teacher. Therefore, the Division Bench of the High Court was not at all justified in recording a finding that the appellant could have been appointed only as a Prakhand Teacher by the Panchayat Samiti on fixed pay. Unfortunately, the Division Bench overlooked the fact that the appellant had been appointed as per the policy of compassionate appointment framed by the State Government and that policy does not envisage the appointment of the dependant of a deceased employee on fixed pay."3. By the impugned judgment, a Division Bench of the High Court correctly held that the Appellants have no legal right to seek appointment on compassionate grounds. Compassionate appointments are not a source of recruitment and they are made to provide succour to the family of an employee who dies in harness. In the State of Bihar compassionate appointments are governed by instructions issued by the Government. Some of the Appellants were recommended for appointment to Class III posts on a regular basis by the District Compassionate Committee. However, they were appointed as Prakhand Teachers/Panchayat Shikshaks/ Nagar Shikshaks, etc. on a fixed pay. The Appellants could not have been appointed on a fixed pay and they are entitled for appointment to either on Class III or Class IV posts on regular basis or payment of regular pay scale in the posts of as Prakhand Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. in which they are working at present. Some of the Appellants who were recommended for appointment to Class III posts but were appointed as Prakhand Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. on fixed pay are similarly situated to Vishwanath Pandey and they are entitled to be appointed on a regular pay scale.4. The other Appellants who were appointed after 01.07.2006 are not entitled to the relief granted to those who were recommended for appointment to Class III or Class IV posts prior to that date. A Full Bench of the Patna High Court in State of Bihar and Others v. Rajeev Ran Vijay Kumar, reported in (2010) 3 PLJR 294 (FB), held that the dependents of deceased Government employees do not have a legal right to be appointed in Government posts. Their appointments on compassionate grounds shall be in accordance with Bihar Panchayat Primary Teacher (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as the `Rules) which came into force w.e.f. 01.07.2006. Rule 10 of the said Rules provides for employment on compassionate grounds to the dependents of teaching/ non-teaching employees against available vacancies of Panchayat Teachers/Block Teachers/Prakhand Teachers, etc. Such appointments can be made only on a fixed pay by the committee constituted under the Rules. The Appellants who have not been recommended for appointment to Class III or Class IV posts prior to 01.07.2006 are not covered by Vishwanath Pandeys case (supra). On the other hand, they are squarely covered by the judgment of Full Bench of the Patna High Court. They are not similarly situated to those who were recommended for appointment to Class III posts prior to 01.07.2006. The Appellants, who were appointed after 01.07.2006, the date on which the Rules came into force, are not entitled to claim appointment on regular pay scales. It is relevant to note that the judgment of the Full Bench of the High Court of Patna was challenged before this Court. The said SLP was withdrawn with liberty granted to the petitioners therein to approach the Government for suitable relief.5.
### Response:
1
### Explanation:
By the impugned judgment, a Division Bench of the High Court correctly held that the Appellants have no legal right to seek appointment on compassionate grounds. Compassionate appointments are not a source of recruitment and they are made to provide succour to the family of an employee who dies in harness. In the State of Bihar compassionate appointments are governed by instructions issued by the Government. Some of the Appellants were recommended for appointment to Class III posts on a regular basis by the District Compassionate Committee. However, they were appointed as Prakhand Teachers/Panchayat Shikshaks/ Nagar Shikshaks, etc. on a fixed pay. The Appellants could not have been appointed on a fixed pay and they are entitled for appointment to either on Class III or Class IV posts on regular basis or payment of regular pay scale in the posts of as Prakhand Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. in which they are working at present. Some of the Appellants who were recommended for appointment to Class III posts but were appointed as Prakhand Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. on fixed pay are similarly situated to Vishwanath Pandey and they are entitled to be appointed on a regular pay scale.The other Appellants who were appointed after 01.07.2006 are not entitled to the relief granted to those who were recommended for appointment to Class III or Class IV posts prior to that date. A Full Bench of the Patna High Court in State of Bihar and Others v. Rajeev Ran Vijay Kumar, reported in (2010) 3 PLJR 294 (FB), held that the dependents of deceased Government employees do not have a legal right to be appointed in Government posts. Their appointments on compassionate grounds shall be in accordance with Bihar Panchayat Primary Teacher (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as the `Rules) which came into force w.e.f. 01.07.2006. Rule 10 of the said Rules provides for employment on compassionate grounds to the dependents of teaching/employees against available vacancies of Panchayat Teachers/Block Teachers/Prakhand Teachers, etc. Such appointments can be made only on a fixed pay by the committee constituted under the Rules. The Appellants who have not been recommended for appointment to Class III or Class IV posts prior to 01.07.2006 are not covered by Vishwanath Pandeys case (supra). On the other hand, they are squarely covered by the judgment of Full Bench of the Patna High Court. They are not similarly situated to those who were recommended for appointment to Class III posts prior to 01.07.2006. The Appellants, who were appointed after 01.07.2006, the date on which the Rules came into force, are not entitled to claim appointment on regular pay scales. It is relevant to note that the judgment of the Full Bench of the High Court of Patna was challenged before this Court. The said SLP was withdrawn with liberty granted to the petitioners therein to approach the Government for suitable relief.
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Cesc Ltd Vs. Chief Post Master General | in this behalf by the written order of the Post Master General, be recovered for the use of the Post Office from the person so refusing, as if it were a fine imposed under this Act, by any Magistrate having jurisdiction where that person may for the time being be resident, and the Post Master General may further direct that any other postal article, not being on (Government) Service, addressed to that person shall be withheld from him until the sum so due is paid or recovered as aforesaid.” 30. Thus from Section 11 it is clear that the ‘addressee’ will be liable to pay the deficit postal charges, if any, once the addressee accepts the postal article or opens it. On the other hand, the ‘sender’ will be liable to be charged for the deficit postage, if it is detected at the time of postage or if the addressee refuse or return the postage or if the addressee is dead or cannot be found. If such amount is found due from the sender, the Postal Authority is empowered to recover the sum dues from the sender under Section 12 of the Act.31. It is not the case of the Postal Authority that any of the postage has been refused or returned by any of the addressee or any addressee is dead or could not be found. In absence of any such allegation no charge can be made from the sender-company under Section 11 and the Company cannot be made liable to pay the postage or sum due thereon for franking Rs.1/- per bill for postage and for that there was no occasion for the authority to exercise power under Section 12 to recover such due from the sender- company. 32. Admittedly, the Director of Postal Services by his letter dated 29.5.1997 informed the Company that as per the revision of postal tariff w.e.f. 1.6.1997, the electricity bills can be posted by paying Rs.1/- w.e.f. 1.6.1997, whether the post sent either as ‘Book’ or ‘Pattern’ or ‘Sample Packet’. The said letter reads as follows:- “DEPARTMENT OF POST, INDIA OFFICE OF THE CHIEF POST MASTER GENERAL, W.B. CIRCLE, YOGAYOG BHAWAN, CALCUTTA – 700 012ToThe Deputy Manager(Com)C.E.S.C. House,Chowrighee SquareCalcutta700 001No. Tech/Z-27/9/90Dated the 29.5.1997SUB: Revision of Tariffs in respect of certain Inland Postal Services with effect from 01.6.1997.REF: Your letter No. Nil dated 28.9.1997Sir,As per revised Postal Tariff w.e.f. 01.6.1997 charges for Book, pattern and sample packets for first 50 Gms or fraction thereof is Re.1/-. For every additional 50 Gms or fraction thereof in excess of 50 Gms. is Rs.2/. Monthly consumption bill, if it is posted as Book, pattern and sample packets the revised Postal Tariffs w.e.f. 01.6.1997, as mentioned above, will be applicable.Thanking you,Yours faithfullySd/-(MRS. A. GHOSH)Director of Postal ServicesCalcuttaRegion/Cal-12” In view of the letter dated 29.5.1997, the Company charged Rs. 1/- per Bill for the period from 1.6.1997 till by letter dated 29.10.1998, the Company was informed of cancellation of such letter as evident and quoted hereunder: “DEPARTMENT OF POST, INDIAOFFICE OF THE CHIEF POST MASTER GENERAL, W.B. CIRCLE, YOGAYOG BHAWAN, CALCUTTA – 700 012From O/O the ChiefTo The Deputy ManagerP.M.G.(Commercial),West Bengal CircleVictoria HouseYogayogBhawanChowrigheeSquareCalcutta 700 012Calcutta 700 001No. Tech/Z-27/9/90Dated at Calcutta-700012 the 29.10.1998SubjectSir,I am directed to inform you that this office earlier letter of even no. dtd. 29.5.97 is hereby treated as cancelled. Monthly consumption bill is not under the category of Book Post/Book Packets as per this office rule. This type of bill can be posted affixing the postage stamp as applicable on the letter mail with immediate effect.Yours faithfullySd/-(S.C. Sahu)A.D.P.S. (Technical)For Chief Postmaster-General, Cal-12” 33. Thus it is apparent that due to a wrong intimation given by the Postal Authority, the Company affixed the postal stamp of Rs.1/- per bill, treating it as ‘book post’ and the staff of the Postal Department without any objection cleared and delivered to the respective addressees. 34. Clause 30(iv) of Post Office Guide reminds the office of the Postal Authority to check the bundles to ensure proper check of franking articles and reads as under:- “30. The following procedure must be insisted upon and should be strictly endorsed in all the offices:(iv) Office which accepts the posting should check the bundles to see if various articles have been franked for correct postage and also the total value of the articles tallies with the details given in the dispatch slip and that entries in col.1 to 3 of the Franking Machines register of posting have correctly been made. A separate dispatch slip should be there for articles franked with different machines. He will then put his initials, date and date stamp in the Franking Machine Register of postings and return the same to the licensee or his agent.” 35. Though under Clause 30(iv) the office which accepts the posting is required to check the bundles franked for correct postage and also to tally the total value of the articles, before dispatch of the article, there is failure on the part of the office of the Postal Authority as noticed by the Division Bench of the High Court and for that the sender company cannot be made liable.36. The Postal Authority mislead the sender company which caused charging of lesser amount for the bills is evident from the letters written by the Director, as quoted in the preceding paragraphs. The failure on the part of the Postal Authority to ensure correct postage as per Clause 30(iv) is also not in dispute. The mistake having been committed by the Postal Authority and there being failure on the part of office of the Postal Authority to check the postal articles and postage for recovering the amount from the addressee, it is not open for the Postal Authority to pass on such liability on the sender-company or to recover the same from the Company. The demand notice being not proper was rightly held to be illegal by the learned Single Judge. The question thus raised in this case is answered in negative and against the respondents. | 1[ds]Section 11 it is clear that thewill be liable to pay the deficit postal charges, if any, once the addressee accepts the postal article or opens it. On the other hand, thewill be liable to be charged for the deficit postage, if it is detected at the time of postage or if the addressee refuse or return the postage or if the addressee is dead or cannot be found. If such amount is found due from the sender, the Postal Authority is empowered to recover the sum dues from the sender under Section 12 of the Act.31. It is not the case of the Postal Authority that any of the postage has been refused or returned by any of the addressee or any addressee is dead or could not be found. In absence of any such allegation no charge can be made from the sender-company under Section 11 and the Company cannot be made liable to pay the postage or sum due thereon for franking Rs.1/- per bill for postage and for that there was no occasion for the authority to exercise power under Section 12 to recover such due from the sender- company.Though under Clause 30(iv) the office which accepts the posting is required to check the bundles franked for correct postage and also to tally the total value of the articles, before dispatch of the article, there is failure on the part of the office of the Postal Authority as noticed by the Division Bench of the High Court and for that the sender company cannot be made liable.36. The Postal Authority mislead the sender company which caused charging of lesser amount for the bills is evident from the letters written by the Director, as quoted in the preceding paragraphs. The failure on the part of the Postal Authority to ensure correct postage as per Clause 30(iv) is also not in dispute. The mistake having been committed by the Postal Authority and there being failure on the part of office of the Postal Authority to check the postal articles and postage for recovering the amount from the addressee, it is not open for the Postal Authority to pass on such liability on the sender-company or to recover the same from the Company. The demand notice being not proper was rightly held to be illegal by the learned Single Judge. The question thus raised in this case is answered in negative and against theSection 11 it is clear that thewill be liable to pay the deficit postal charges, if any, once the addressee accepts the postal article or opens it. On the other hand, thewill be liable to be charged for the deficit postage, if it is detected at the time of postage or if the addressee refuse or return the postage or if the addressee is dead or cannot be found. If such amount is found due from the sender, the Postal Authority is empowered to recover the sum dues from the sender under Section 12 of the Act.31. It is not the case of the Postal Authority that any of the postage has been refused or returned by any of the addressee or any addressee is dead or could not be found. In absence of any such allegation no charge can be made from the sender-company under Section 11 and the Company cannot be made liable to pay the postage or sum due thereon for franking Rs.1/- per bill for postage and for that there was no occasion for the authority to exercise power under Section 12 to recover such due from the sender- company.h under Clause 30(iv) the office which accepts the posting is required to check the bundles franked for correct postage and also to tally the total value of the articles, before dispatch of the article, there is failure on the part of the office of the Postal Authority as noticed by the Division Bench of the High Court and for that the sender company cannot be made liable.36. The Postal Authority mislead the sender company which caused charging of lesser amount for the bills is evident from the letters written by the Director, as quoted in the preceding paragraphs. The failure on the part of the Postal Authority to ensure correct postage as per Clause 30(iv) is also not in dispute. The mistake having been committed by the Postal Authority and there being failure on the part of office of the Postal Authority to check the postal articles and postage for recovering the amount from the addressee, it is not open for the Postal Authority to pass on such liability on the sender-company or to recover the same from the Company. The demand notice being not proper was rightly held to be illegal by the learned Single Judge. The question thus raised in this case is answered in negative and against the | 1 | 4,795 | 867 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
in this behalf by the written order of the Post Master General, be recovered for the use of the Post Office from the person so refusing, as if it were a fine imposed under this Act, by any Magistrate having jurisdiction where that person may for the time being be resident, and the Post Master General may further direct that any other postal article, not being on (Government) Service, addressed to that person shall be withheld from him until the sum so due is paid or recovered as aforesaid.” 30. Thus from Section 11 it is clear that the ‘addressee’ will be liable to pay the deficit postal charges, if any, once the addressee accepts the postal article or opens it. On the other hand, the ‘sender’ will be liable to be charged for the deficit postage, if it is detected at the time of postage or if the addressee refuse or return the postage or if the addressee is dead or cannot be found. If such amount is found due from the sender, the Postal Authority is empowered to recover the sum dues from the sender under Section 12 of the Act.31. It is not the case of the Postal Authority that any of the postage has been refused or returned by any of the addressee or any addressee is dead or could not be found. In absence of any such allegation no charge can be made from the sender-company under Section 11 and the Company cannot be made liable to pay the postage or sum due thereon for franking Rs.1/- per bill for postage and for that there was no occasion for the authority to exercise power under Section 12 to recover such due from the sender- company. 32. Admittedly, the Director of Postal Services by his letter dated 29.5.1997 informed the Company that as per the revision of postal tariff w.e.f. 1.6.1997, the electricity bills can be posted by paying Rs.1/- w.e.f. 1.6.1997, whether the post sent either as ‘Book’ or ‘Pattern’ or ‘Sample Packet’. The said letter reads as follows:- “DEPARTMENT OF POST, INDIA OFFICE OF THE CHIEF POST MASTER GENERAL, W.B. CIRCLE, YOGAYOG BHAWAN, CALCUTTA – 700 012ToThe Deputy Manager(Com)C.E.S.C. House,Chowrighee SquareCalcutta700 001No. Tech/Z-27/9/90Dated the 29.5.1997SUB: Revision of Tariffs in respect of certain Inland Postal Services with effect from 01.6.1997.REF: Your letter No. Nil dated 28.9.1997Sir,As per revised Postal Tariff w.e.f. 01.6.1997 charges for Book, pattern and sample packets for first 50 Gms or fraction thereof is Re.1/-. For every additional 50 Gms or fraction thereof in excess of 50 Gms. is Rs.2/. Monthly consumption bill, if it is posted as Book, pattern and sample packets the revised Postal Tariffs w.e.f. 01.6.1997, as mentioned above, will be applicable.Thanking you,Yours faithfullySd/-(MRS. A. GHOSH)Director of Postal ServicesCalcuttaRegion/Cal-12” In view of the letter dated 29.5.1997, the Company charged Rs. 1/- per Bill for the period from 1.6.1997 till by letter dated 29.10.1998, the Company was informed of cancellation of such letter as evident and quoted hereunder: “DEPARTMENT OF POST, INDIAOFFICE OF THE CHIEF POST MASTER GENERAL, W.B. CIRCLE, YOGAYOG BHAWAN, CALCUTTA – 700 012From O/O the ChiefTo The Deputy ManagerP.M.G.(Commercial),West Bengal CircleVictoria HouseYogayogBhawanChowrigheeSquareCalcutta 700 012Calcutta 700 001No. Tech/Z-27/9/90Dated at Calcutta-700012 the 29.10.1998SubjectSir,I am directed to inform you that this office earlier letter of even no. dtd. 29.5.97 is hereby treated as cancelled. Monthly consumption bill is not under the category of Book Post/Book Packets as per this office rule. This type of bill can be posted affixing the postage stamp as applicable on the letter mail with immediate effect.Yours faithfullySd/-(S.C. Sahu)A.D.P.S. (Technical)For Chief Postmaster-General, Cal-12” 33. Thus it is apparent that due to a wrong intimation given by the Postal Authority, the Company affixed the postal stamp of Rs.1/- per bill, treating it as ‘book post’ and the staff of the Postal Department without any objection cleared and delivered to the respective addressees. 34. Clause 30(iv) of Post Office Guide reminds the office of the Postal Authority to check the bundles to ensure proper check of franking articles and reads as under:- “30. The following procedure must be insisted upon and should be strictly endorsed in all the offices:(iv) Office which accepts the posting should check the bundles to see if various articles have been franked for correct postage and also the total value of the articles tallies with the details given in the dispatch slip and that entries in col.1 to 3 of the Franking Machines register of posting have correctly been made. A separate dispatch slip should be there for articles franked with different machines. He will then put his initials, date and date stamp in the Franking Machine Register of postings and return the same to the licensee or his agent.” 35. Though under Clause 30(iv) the office which accepts the posting is required to check the bundles franked for correct postage and also to tally the total value of the articles, before dispatch of the article, there is failure on the part of the office of the Postal Authority as noticed by the Division Bench of the High Court and for that the sender company cannot be made liable.36. The Postal Authority mislead the sender company which caused charging of lesser amount for the bills is evident from the letters written by the Director, as quoted in the preceding paragraphs. The failure on the part of the Postal Authority to ensure correct postage as per Clause 30(iv) is also not in dispute. The mistake having been committed by the Postal Authority and there being failure on the part of office of the Postal Authority to check the postal articles and postage for recovering the amount from the addressee, it is not open for the Postal Authority to pass on such liability on the sender-company or to recover the same from the Company. The demand notice being not proper was rightly held to be illegal by the learned Single Judge. The question thus raised in this case is answered in negative and against the respondents.
### Response:
1
### Explanation:
Section 11 it is clear that thewill be liable to pay the deficit postal charges, if any, once the addressee accepts the postal article or opens it. On the other hand, thewill be liable to be charged for the deficit postage, if it is detected at the time of postage or if the addressee refuse or return the postage or if the addressee is dead or cannot be found. If such amount is found due from the sender, the Postal Authority is empowered to recover the sum dues from the sender under Section 12 of the Act.31. It is not the case of the Postal Authority that any of the postage has been refused or returned by any of the addressee or any addressee is dead or could not be found. In absence of any such allegation no charge can be made from the sender-company under Section 11 and the Company cannot be made liable to pay the postage or sum due thereon for franking Rs.1/- per bill for postage and for that there was no occasion for the authority to exercise power under Section 12 to recover such due from the sender- company.Though under Clause 30(iv) the office which accepts the posting is required to check the bundles franked for correct postage and also to tally the total value of the articles, before dispatch of the article, there is failure on the part of the office of the Postal Authority as noticed by the Division Bench of the High Court and for that the sender company cannot be made liable.36. The Postal Authority mislead the sender company which caused charging of lesser amount for the bills is evident from the letters written by the Director, as quoted in the preceding paragraphs. The failure on the part of the Postal Authority to ensure correct postage as per Clause 30(iv) is also not in dispute. The mistake having been committed by the Postal Authority and there being failure on the part of office of the Postal Authority to check the postal articles and postage for recovering the amount from the addressee, it is not open for the Postal Authority to pass on such liability on the sender-company or to recover the same from the Company. The demand notice being not proper was rightly held to be illegal by the learned Single Judge. The question thus raised in this case is answered in negative and against theSection 11 it is clear that thewill be liable to pay the deficit postal charges, if any, once the addressee accepts the postal article or opens it. On the other hand, thewill be liable to be charged for the deficit postage, if it is detected at the time of postage or if the addressee refuse or return the postage or if the addressee is dead or cannot be found. If such amount is found due from the sender, the Postal Authority is empowered to recover the sum dues from the sender under Section 12 of the Act.31. It is not the case of the Postal Authority that any of the postage has been refused or returned by any of the addressee or any addressee is dead or could not be found. In absence of any such allegation no charge can be made from the sender-company under Section 11 and the Company cannot be made liable to pay the postage or sum due thereon for franking Rs.1/- per bill for postage and for that there was no occasion for the authority to exercise power under Section 12 to recover such due from the sender- company.h under Clause 30(iv) the office which accepts the posting is required to check the bundles franked for correct postage and also to tally the total value of the articles, before dispatch of the article, there is failure on the part of the office of the Postal Authority as noticed by the Division Bench of the High Court and for that the sender company cannot be made liable.36. The Postal Authority mislead the sender company which caused charging of lesser amount for the bills is evident from the letters written by the Director, as quoted in the preceding paragraphs. The failure on the part of the Postal Authority to ensure correct postage as per Clause 30(iv) is also not in dispute. The mistake having been committed by the Postal Authority and there being failure on the part of office of the Postal Authority to check the postal articles and postage for recovering the amount from the addressee, it is not open for the Postal Authority to pass on such liability on the sender-company or to recover the same from the Company. The demand notice being not proper was rightly held to be illegal by the learned Single Judge. The question thus raised in this case is answered in negative and against the
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Jagdish Prashad Vs. State | Fazal Ali, J.1. The appellant has been convicted under Section 324, I.P.C. to one years rigorous imprisonment as modified by the High Court. It appears that on the date of occurrence namely, August 25, 1971, Bishan the deceased was assaulted by a knife and the appellant was seen running away by a crowd collected, and so the members of the crowd including the members of the police arrested him and snatched knife from his hand which contained no blood-stains. The High Court appears to have relied on the following three circumstances -(i) that the appellant was seen by the three witness with a chhuri in his hand;(ii) that he was waving the chhuri at that time and the witnesses warded off some of the blows with the dandas which they had;(iii) that the appellant was caught and taken to the police station.2. Even if we take these circumstances at their face value they do not exclude the possibility of guilt of the accused. There was no eyewitness to prove that the appellant had inflicted any knife blow on Bishan, and in the absence of such evidence coupled with the fact that the knife which was snatched from the appellant did not contain any blood-stains, it cannot be held that the circumstances proved in the case are incompatible with the innocence of the accused. It is possible that the accused may have been coming from some other locality with a knife and since he was chased by some persons he waved the knife in order to protect him or to scare away the crowd. We have gone through the judgment of the High Court and we find that there is no legal evidence against the appellant on the basis of which his conviction can be sustained. It is true that Bishan had died on the 30th, but there is no evidence to connect his death with the assault of 25th, because admittedly Bishan was discharged from the hospital on 26th, that is, the next day. In these circumstances, therefore, we are satisfied that the High Court was not at all justified in convicting the appellant without there being any legal evidence to support his conviction.3. | 1[ds]2. Even if we take these circumstances at their face value they do not exclude the possibility of guilt of the accused. There was no eyewitness to prove that the appellant had inflicted any knife blow on Bishan, and in the absence of such evidence coupled with the fact that the knife which was snatched from the appellant did not contain anyit cannot be held that the circumstances proved in the case are incompatible with the innocence of the accused. It is possible that the accused may have been coming from some other locality with a knife and since he was chased by some persons he waved the knife in order to protect him or to scare away the crowd. We have gone through the judgment of the High Court and we find that there is no legal evidence against the appellant on the basis of which his conviction can be sustained. It is true that Bishan had died on the 30th, but there is no evidence to connect his death with the assault of 25th, because admittedly Bishan was discharged from the hospital on 26th, that is, the next day. In these circumstances, therefore, we are satisfied that the High Court was not at all justified in convicting the appellant without there being any legal evidence to support his conviction. | 1 | 401 | 240 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
Fazal Ali, J.1. The appellant has been convicted under Section 324, I.P.C. to one years rigorous imprisonment as modified by the High Court. It appears that on the date of occurrence namely, August 25, 1971, Bishan the deceased was assaulted by a knife and the appellant was seen running away by a crowd collected, and so the members of the crowd including the members of the police arrested him and snatched knife from his hand which contained no blood-stains. The High Court appears to have relied on the following three circumstances -(i) that the appellant was seen by the three witness with a chhuri in his hand;(ii) that he was waving the chhuri at that time and the witnesses warded off some of the blows with the dandas which they had;(iii) that the appellant was caught and taken to the police station.2. Even if we take these circumstances at their face value they do not exclude the possibility of guilt of the accused. There was no eyewitness to prove that the appellant had inflicted any knife blow on Bishan, and in the absence of such evidence coupled with the fact that the knife which was snatched from the appellant did not contain any blood-stains, it cannot be held that the circumstances proved in the case are incompatible with the innocence of the accused. It is possible that the accused may have been coming from some other locality with a knife and since he was chased by some persons he waved the knife in order to protect him or to scare away the crowd. We have gone through the judgment of the High Court and we find that there is no legal evidence against the appellant on the basis of which his conviction can be sustained. It is true that Bishan had died on the 30th, but there is no evidence to connect his death with the assault of 25th, because admittedly Bishan was discharged from the hospital on 26th, that is, the next day. In these circumstances, therefore, we are satisfied that the High Court was not at all justified in convicting the appellant without there being any legal evidence to support his conviction.3.
### Response:
1
### Explanation:
2. Even if we take these circumstances at their face value they do not exclude the possibility of guilt of the accused. There was no eyewitness to prove that the appellant had inflicted any knife blow on Bishan, and in the absence of such evidence coupled with the fact that the knife which was snatched from the appellant did not contain anyit cannot be held that the circumstances proved in the case are incompatible with the innocence of the accused. It is possible that the accused may have been coming from some other locality with a knife and since he was chased by some persons he waved the knife in order to protect him or to scare away the crowd. We have gone through the judgment of the High Court and we find that there is no legal evidence against the appellant on the basis of which his conviction can be sustained. It is true that Bishan had died on the 30th, but there is no evidence to connect his death with the assault of 25th, because admittedly Bishan was discharged from the hospital on 26th, that is, the next day. In these circumstances, therefore, we are satisfied that the High Court was not at all justified in convicting the appellant without there being any legal evidence to support his conviction.
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Sagunthala(Dead) Thr. Lrs Vs. Special Tahsildar (L.A.) | Dhavaji Naik v. State of Maharashtra, (2009) 11 SCC 171 , has observed as following: "14. The potentiality of a land for the purpose of development as also for building purposes would depend upon a large number of factors. For the said purpose, the court may not only have to bear in mind the purpose for which the lands were sought to be acquired but also the subsequent events to some extent. 15. In a case of this nature the court may proceed on the presumption that such a vast tract of land viz. 96 villages were sought to be acquired at the same time for construction of New Bombay. We are not unmindful of the fact that development in the entire area was not possible at one point of time. Development of the area must have taken place in phases. We are also not unmindful of the fact that the price of the land may skyrocket depending upon the development as also future potentiality." 34. In Atma Singh (Dead) through Lrs., and others v. State of Haryana and another, [(2008) 2 SCC 568] , it was observed that the expression "market value" has been the subject-matter of consideration by this Court in several cases. The market value is the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when let out in most advantageous manner excluding any advantage due to carrying out of the scheme for which the property is compulsorily acquired. In considering market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. The guiding principle would be the conduct of hypothetical willing vendor who would offer the land and that of a purchaser who, in normal human conduct, would be willing to buy as a prudent man in normal market conditions but not of an anxious purchaser dealing at arms length nor a fictitious sale brought about in quick succession or otherwise to inflate the market value. The determination of market value is the prediction of an economic event viz. a price outcome of hypothetical sale expressed in terms of probabilities. [See para 4] 35. It has been further held in Atma Singh (Supra) that the market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when let out in its most advantageous manner. The question whether a land has potential value or not, is primarily one of facts depending upon its condition, situation, user to which it is put and whether it is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing or has prospect of development have to be taken into consideration. [See para 5] 36. Following those principle laid down by this Court we hold that the High Court and the Land Acquisition Officer failed to take into consideration the advantages and facilities, as discussed above, which were available in the acquired land. Moreover, the very purpose for which the land was being acquired is also a relevant factor. 37. The purpose for which the acquisition is being made is an important factor. This Court in the case of Nelson Fernandes and others v. Special Land Acquisition Officer, South Goa and others (2007) 9 SCC 447 , held that both the Special Land Acquisition Officer, the District Judge and the High Court have failed to notice that the purpose of acquisition is for Railways and that the purpose is a relevant factor to be taken into consideration for fixing the compensation. [See para 29, page 459] 38. In the present case it has come on evidence from R.W. 2 that the lands were acquired to build quarters for the workers of the Company. 39. As such we observe that the Reference Court rightly fixed the amount of compensation to be Rs. 1,75,000/- and we are inclined to uphold the said finding. As far as the question of grant of higher compensation than what is claimed by the claimants goes, the Reference Court has observed, and in our opinion rightly so, that even before the representation before the Land Acquisition Officer, the claimants had stated that in event of their being not satisfied with the award, they reserve the right to go before the Civil Court for determination of just and reasonable compensation. 40. For the reasons above, the judgment of the High Court is set aside and the order of the Reference Court is upheld. So far as the claim of the appellant(s) for solatium, interest and other benefits under the statute is concerned, we direct that the same should be governed by the principles laid down in Sunder v. Union of India, (2001) 7 SCC 211 , and the principles laid down in para 26, page 231 of the judgment be followed. Para 26 of the judgment in Sunder (supra) is set out below: "Once it is held as it inevitably must be that the solatium provided for under Section 23(2) of the Act forms an integral and statutory part of the compensation awarded to a landowner, then from the plain terms of Section 28 of the Act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. Indeed the language of Section 28 does not even remotely refer to market value alone and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 28 therefore would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant and authorise the grant of interest on solatium as well." | 1[ds]40. For the reasons above, the judgment of the High Court is set aside and the order of the Reference Court is upheld. So far as the claim of the appellant(s) for solatium, interest and other benefits under the statute is concerned, we direct that the same should be governed by the principles laid down in Sunder v. Union of India, (2001) 7 SCC 211 , and the principles laid down in para 26, page 231 of the judgment be followed. Para 26 of the judgment in Sunder (supra) is set out below:"Once it is held as it inevitably must be that the solatium provided for under Section 23(2) of the Act forms an integral and statutory part of the compensation awarded to a landowner, then from the plain terms of Section 28 of the Act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. Indeed the language of Section 28 does not even remotely refer to market value alone and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 28 therefore would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant and authorise the grant of interest on solatium as well." | 1 | 4,847 | 261 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
Dhavaji Naik v. State of Maharashtra, (2009) 11 SCC 171 , has observed as following: "14. The potentiality of a land for the purpose of development as also for building purposes would depend upon a large number of factors. For the said purpose, the court may not only have to bear in mind the purpose for which the lands were sought to be acquired but also the subsequent events to some extent. 15. In a case of this nature the court may proceed on the presumption that such a vast tract of land viz. 96 villages were sought to be acquired at the same time for construction of New Bombay. We are not unmindful of the fact that development in the entire area was not possible at one point of time. Development of the area must have taken place in phases. We are also not unmindful of the fact that the price of the land may skyrocket depending upon the development as also future potentiality." 34. In Atma Singh (Dead) through Lrs., and others v. State of Haryana and another, [(2008) 2 SCC 568] , it was observed that the expression "market value" has been the subject-matter of consideration by this Court in several cases. The market value is the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when let out in most advantageous manner excluding any advantage due to carrying out of the scheme for which the property is compulsorily acquired. In considering market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. The guiding principle would be the conduct of hypothetical willing vendor who would offer the land and that of a purchaser who, in normal human conduct, would be willing to buy as a prudent man in normal market conditions but not of an anxious purchaser dealing at arms length nor a fictitious sale brought about in quick succession or otherwise to inflate the market value. The determination of market value is the prediction of an economic event viz. a price outcome of hypothetical sale expressed in terms of probabilities. [See para 4] 35. It has been further held in Atma Singh (Supra) that the market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when let out in its most advantageous manner. The question whether a land has potential value or not, is primarily one of facts depending upon its condition, situation, user to which it is put and whether it is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing or has prospect of development have to be taken into consideration. [See para 5] 36. Following those principle laid down by this Court we hold that the High Court and the Land Acquisition Officer failed to take into consideration the advantages and facilities, as discussed above, which were available in the acquired land. Moreover, the very purpose for which the land was being acquired is also a relevant factor. 37. The purpose for which the acquisition is being made is an important factor. This Court in the case of Nelson Fernandes and others v. Special Land Acquisition Officer, South Goa and others (2007) 9 SCC 447 , held that both the Special Land Acquisition Officer, the District Judge and the High Court have failed to notice that the purpose of acquisition is for Railways and that the purpose is a relevant factor to be taken into consideration for fixing the compensation. [See para 29, page 459] 38. In the present case it has come on evidence from R.W. 2 that the lands were acquired to build quarters for the workers of the Company. 39. As such we observe that the Reference Court rightly fixed the amount of compensation to be Rs. 1,75,000/- and we are inclined to uphold the said finding. As far as the question of grant of higher compensation than what is claimed by the claimants goes, the Reference Court has observed, and in our opinion rightly so, that even before the representation before the Land Acquisition Officer, the claimants had stated that in event of their being not satisfied with the award, they reserve the right to go before the Civil Court for determination of just and reasonable compensation. 40. For the reasons above, the judgment of the High Court is set aside and the order of the Reference Court is upheld. So far as the claim of the appellant(s) for solatium, interest and other benefits under the statute is concerned, we direct that the same should be governed by the principles laid down in Sunder v. Union of India, (2001) 7 SCC 211 , and the principles laid down in para 26, page 231 of the judgment be followed. Para 26 of the judgment in Sunder (supra) is set out below: "Once it is held as it inevitably must be that the solatium provided for under Section 23(2) of the Act forms an integral and statutory part of the compensation awarded to a landowner, then from the plain terms of Section 28 of the Act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. Indeed the language of Section 28 does not even remotely refer to market value alone and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 28 therefore would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant and authorise the grant of interest on solatium as well."
### Response:
1
### Explanation:
40. For the reasons above, the judgment of the High Court is set aside and the order of the Reference Court is upheld. So far as the claim of the appellant(s) for solatium, interest and other benefits under the statute is concerned, we direct that the same should be governed by the principles laid down in Sunder v. Union of India, (2001) 7 SCC 211 , and the principles laid down in para 26, page 231 of the judgment be followed. Para 26 of the judgment in Sunder (supra) is set out below:"Once it is held as it inevitably must be that the solatium provided for under Section 23(2) of the Act forms an integral and statutory part of the compensation awarded to a landowner, then from the plain terms of Section 28 of the Act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. Indeed the language of Section 28 does not even remotely refer to market value alone and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 28 therefore would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant and authorise the grant of interest on solatium as well."
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Union Of India Vs. Hari Singh | The appellant-Union of India is seriously aggrieved by the impugned judgment of the High Court and submitted that after receiving the entire amount, the respondent also signed the supplementary agreement and thereafter the respondent was not justified in invoking the arbitration. 8. Learned Additional Solicitor General appearing on behalf of the Union of India has strenuously submitted that the matter is no longer res integra and is covered by a series of judgments for almost a century. He referred to the judgment of Privy Council in Payana Reena Saminathan v. Pana Lana Palaniappa 14 (1913-14) 41 IA 142 (reiterated in Union of India v. Kishorilal Gupta & Bros. AIR 1959 SC 1362 ) which reads as under:- ".......The `receipt given by the appellants and accepted by the respondent, and acted on by both parties proves conclusively that all the parties agreed to a settlement of all their existing disputes by the arrangement formulated in the `receipt. It is a clear example of what used to be well known as common law pleading as `accord and satisfaction by a substituted agreement. No matter what were the respective rights of the parties inter se they are abandoned in consideration of the acceptance by all of a new agreement. The consequence is that when such an accord and satisfaction takes place the prior rights of the parties are extinguished. They have in fact been exchanged for the new rights; and the new agreement becomes a new departure, and the rights of all the parties are fully represented by it." 9. He submitted that this judgment has been approved and followed by this court even in the year 2009. 10. Learned Additional Solicitor General also placed on record the judgment of this court in State of Maharashtra v. Nav Bharat Builders 1994 Supp (3) SCC 83. In this case, the court observed that the dispute between the parties were conclusive and the respondent fully and finally accepted the claim and thereafter received the amount. Thus, there was accord and satisfaction of the claim relating to labour escalation charges and thereafter the matter could not have been referred to the arbitration. 11. Learned Additional Solicitor General also relied on another judgment of this court in M/s P.K. Ramaiah and Company v. Chairman & Managing Director, National Thermal Power Corpn. 1994 Supp (3) SCC 126. In this case also the respondent received the amount in full and final settlement of his claim. Consequently, there was an accord and satisfaction and thereafter no arbitrable dispute remained for reference to the arbitration. 12. This court in Nathani Steels Ltd. v. Associated Constructions 1995 Supp (3) SCC 324 also had an occasion to examine the similar case. The court observed that after settling the entire matter and receiving the payment, it was not open to the respondent to treat the settlement as non est and proceed to invoke the Arbitration clause. 13. This court in a relatively recent case has examined the legal position once again in the case of National Insurance Company Limited v. Boghara Polyfab Private Limited (2009) 1 SCC 267. In para 25 of the said judgment, the court observed as under:- "25.........Where both parties to a contract confirm in writing that the contract has been fully and finally discharged by performance of all obligations and there are no outstanding claims or disputes, courts will not refer any subsequent claim or dispute to arbitration. Similarly, where one of the parties to the contract issues a full and final discharge voucher (or no due certificate as the case may be) confirming that he has received the payment in full and final satisfaction of all claims, and he has no outstanding claim, that amounts to discharge of the contract by acceptance of performance and the party issuing the discharge voucher/certificate cannot thereafter make any fresh claim or revive any settled claim. Nor can he seek reference to arbitration in respect of any claim." 14. The court further observed in para 29 as under:- "29.......It is thus clear that the arbitration agreement contained in a contract cannot be invoked to seek reference of any dispute to arbitration, in the following circumstances, when the contract is discharged on account of performance, or accord and satisfaction, or mutual agreement, and the same is reduced to writing (and signed by both parties or by the party seeking arbitration): (a) Where the obligations under a contract are fully performed and discharge of the contract by performance is acknowledged by a full and final discharge voucher/receipt. Nothing survives in regard to such discharged contract. (b) Where the parties to the contract, by mutual agreement, accept performance of altered, modified and substituted obligations and confirm in writing the discharge of contract by performance of the altered, modified or substituted obligations. (c) Where the parties to a contract, by mutual agreement, absolve each other from performance of their respective obligations (either on account of frustration or otherwise) and consequently cancel the agreement and confirm that there is no outstanding claims or disputes." 15. In this case the court relied on earlier judgments of this court and reiterated the legal position which has been crystallized by a series of judgments where both the parties to a contract confirmed in writing that the contract has been fully and finally discharged by the parties and there was no outstanding claim or dispute and thereafter the matter could not have been referred to the arbitration. 16. In a celebrated book, Russell on Arbitration, 19th Edn., p.396, it is stated that "an accord and satisfaction may be pleaded in an action on award and will constitute a good defence". 17. In our considered view, on the basis of the above settled legal position that when the parties by a supplementary agreement obtained a full and final discharge after paying the entire amount, which was due and payable to the contractor, thereafter the contractor would not be justified in invoking arbitration because there was no arbitral dispute for reference to the arbitration. | 1[ds]15. In this case the court relied on earlier judgments of this court and reiterated the legal position which has been crystallized by a series of judgments where both the parties to a contract confirmed in writing that the contract has been fully and finally discharged by the parties and there was no outstanding claim or dispute and thereafter the matter could not have been referred to the arbitration.In our considered view, on the basis of the above settled legal position that when the parties by a supplementary agreement obtained a full and final discharge after paying the entire amount, which was due and payable to the contractor, thereafter the contractor would not be justified in invoking arbitration because there was no arbitral dispute for reference to the arbitration. | 1 | 1,930 | 138 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
The appellant-Union of India is seriously aggrieved by the impugned judgment of the High Court and submitted that after receiving the entire amount, the respondent also signed the supplementary agreement and thereafter the respondent was not justified in invoking the arbitration. 8. Learned Additional Solicitor General appearing on behalf of the Union of India has strenuously submitted that the matter is no longer res integra and is covered by a series of judgments for almost a century. He referred to the judgment of Privy Council in Payana Reena Saminathan v. Pana Lana Palaniappa 14 (1913-14) 41 IA 142 (reiterated in Union of India v. Kishorilal Gupta & Bros. AIR 1959 SC 1362 ) which reads as under:- ".......The `receipt given by the appellants and accepted by the respondent, and acted on by both parties proves conclusively that all the parties agreed to a settlement of all their existing disputes by the arrangement formulated in the `receipt. It is a clear example of what used to be well known as common law pleading as `accord and satisfaction by a substituted agreement. No matter what were the respective rights of the parties inter se they are abandoned in consideration of the acceptance by all of a new agreement. The consequence is that when such an accord and satisfaction takes place the prior rights of the parties are extinguished. They have in fact been exchanged for the new rights; and the new agreement becomes a new departure, and the rights of all the parties are fully represented by it." 9. He submitted that this judgment has been approved and followed by this court even in the year 2009. 10. Learned Additional Solicitor General also placed on record the judgment of this court in State of Maharashtra v. Nav Bharat Builders 1994 Supp (3) SCC 83. In this case, the court observed that the dispute between the parties were conclusive and the respondent fully and finally accepted the claim and thereafter received the amount. Thus, there was accord and satisfaction of the claim relating to labour escalation charges and thereafter the matter could not have been referred to the arbitration. 11. Learned Additional Solicitor General also relied on another judgment of this court in M/s P.K. Ramaiah and Company v. Chairman & Managing Director, National Thermal Power Corpn. 1994 Supp (3) SCC 126. In this case also the respondent received the amount in full and final settlement of his claim. Consequently, there was an accord and satisfaction and thereafter no arbitrable dispute remained for reference to the arbitration. 12. This court in Nathani Steels Ltd. v. Associated Constructions 1995 Supp (3) SCC 324 also had an occasion to examine the similar case. The court observed that after settling the entire matter and receiving the payment, it was not open to the respondent to treat the settlement as non est and proceed to invoke the Arbitration clause. 13. This court in a relatively recent case has examined the legal position once again in the case of National Insurance Company Limited v. Boghara Polyfab Private Limited (2009) 1 SCC 267. In para 25 of the said judgment, the court observed as under:- "25.........Where both parties to a contract confirm in writing that the contract has been fully and finally discharged by performance of all obligations and there are no outstanding claims or disputes, courts will not refer any subsequent claim or dispute to arbitration. Similarly, where one of the parties to the contract issues a full and final discharge voucher (or no due certificate as the case may be) confirming that he has received the payment in full and final satisfaction of all claims, and he has no outstanding claim, that amounts to discharge of the contract by acceptance of performance and the party issuing the discharge voucher/certificate cannot thereafter make any fresh claim or revive any settled claim. Nor can he seek reference to arbitration in respect of any claim." 14. The court further observed in para 29 as under:- "29.......It is thus clear that the arbitration agreement contained in a contract cannot be invoked to seek reference of any dispute to arbitration, in the following circumstances, when the contract is discharged on account of performance, or accord and satisfaction, or mutual agreement, and the same is reduced to writing (and signed by both parties or by the party seeking arbitration): (a) Where the obligations under a contract are fully performed and discharge of the contract by performance is acknowledged by a full and final discharge voucher/receipt. Nothing survives in regard to such discharged contract. (b) Where the parties to the contract, by mutual agreement, accept performance of altered, modified and substituted obligations and confirm in writing the discharge of contract by performance of the altered, modified or substituted obligations. (c) Where the parties to a contract, by mutual agreement, absolve each other from performance of their respective obligations (either on account of frustration or otherwise) and consequently cancel the agreement and confirm that there is no outstanding claims or disputes." 15. In this case the court relied on earlier judgments of this court and reiterated the legal position which has been crystallized by a series of judgments where both the parties to a contract confirmed in writing that the contract has been fully and finally discharged by the parties and there was no outstanding claim or dispute and thereafter the matter could not have been referred to the arbitration. 16. In a celebrated book, Russell on Arbitration, 19th Edn., p.396, it is stated that "an accord and satisfaction may be pleaded in an action on award and will constitute a good defence". 17. In our considered view, on the basis of the above settled legal position that when the parties by a supplementary agreement obtained a full and final discharge after paying the entire amount, which was due and payable to the contractor, thereafter the contractor would not be justified in invoking arbitration because there was no arbitral dispute for reference to the arbitration.
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### Explanation:
15. In this case the court relied on earlier judgments of this court and reiterated the legal position which has been crystallized by a series of judgments where both the parties to a contract confirmed in writing that the contract has been fully and finally discharged by the parties and there was no outstanding claim or dispute and thereafter the matter could not have been referred to the arbitration.In our considered view, on the basis of the above settled legal position that when the parties by a supplementary agreement obtained a full and final discharge after paying the entire amount, which was due and payable to the contractor, thereafter the contractor would not be justified in invoking arbitration because there was no arbitral dispute for reference to the arbitration.
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